•#HDNV-S0F 


rttflMY 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


QJl'j 


SCHOOL  OF  LAW 
LIBRARY 


^OJIWDJiO- 


^AHVH9 


lnc.AwrPi  To 


rf^UlBKAKT- 


^AHVMH^ 


vWnnwv.cm>^ 


.^•UNMERty 


<Tjl30NV1 


II£j>            ^UIBKAKYtf/^ 

■■':'"     WiMWff** 

<§ 

d  V 


q 

Pt 

DJ.Dav/e.  *i 

L(\  Cum  tre    Pec. 
Co  I  IT. 


-LAW- 

u 


TEXT-BOOK  SERIES," 


PUBLISHED  BY 


The  Blackstone  Publishing  Company, 

19  S.  Ninth  St.,  Philadelphia,  Pa. 


SERIES  OF  1887  NOW  COMPLETE. 


12   VOLUMES   FOR   $15,   DELIVERED 

Free  of  Mail  or  Express  Charges,  on  Receipt  of  Price. 


This  Series  contains  a  collection  of  the  FRESHEST, 
MOST  AUTHORITATIVE  AND  MOST  VALUA- 
BLE TEXT- BOOKS  in  the  leading  departments  of 
the  law,  thus  furnishing  to  the  student,  practitioner,  and 
judge,  for  almost  a  NOMINAL  CONSIDERATION, 
a  WORKING  LIBRARY,  of  the  most  recent  and  de- 
sirable literature  of  the  profession,  consisting  of  the  follow- 
ing Volumes  for  year  ending  November  30th,  1887  : 

No.     1.   Smith  on  Master  and  Servant. 

2.  Challis  on  Real  Property. 

3.  DeColyar  on  Guarantee,  Principal  and  Surety. 

4.  Smith  on  Negligence. 

5.  Blackburn  on  Sales. 

6.  Pollock  on- Torts. 

7.  Taylor  on  Evidence,  Vol.  I,  Part  One. 

8.  "  "  "      "      "     Two. 

9.  "  "  "     II,    "     One. 

10.  "  "  "       "    "     Two. 

1 1.  Wright  on  Criminal  Conspiracies,  with  Ameri- 
can Notes  by  Hampton  L.  Carson,  Esq.,  of 
the  Philadelphia  Bar. 

12.  May  on  Fraudulent  Conveyance. 

(i) 


IMOTF     _We  give  3,000  to  10,000  Pages  in 
INU1Cl  Twelve  Months  for  $15. 


When  we  announce  books  for  reprinting  in  the  TEXT- 
B(  )OK  SERIES,  it  is,  in  most  instances,  in  advance  of  the 
publication  in  England  of  said  book  or  books,  therefore  it 
is  impossible  to  know  the  number  of  pages  a  given  work 
will  make,  and  as  there  must  be  a  limit  to  what  we  furnish, 
we  draw  the  line  at  not  less  than  3,000  nor  more  than 
10,000  pages  a  year.  We  gave  nearly  6,000  pages  ver- 
batim last  year,  the  original  English  paging  aggregating 
about  8,000  pages. 

We  publish  the  TEXT-BOOK  SERIES  in  monthly 
issues  or  volumes,  so  that  we  may  get  the  advantage  of 
second  class  mail  matter.  The  total  number  of  our  pages 
4  x  yVs  inches  furnished  in  the  year  governs  the  contract, 
number  of  pages  in  a  volume  to  be  disregarded. 

Philadelphia,  Dec.  1,  1887. 

The  BLACKSTONE  PUBLISHING  COMPANY. 


AGENTS  W ANTED. 


(2) 


A  SELECTION  OF 


LEADING  CASES  IN  THE 


COMMON  LAW 


WITH  NOTES. 


FROM  THE  THIRD  ENGLISH  EDITION. 


WALTER  SHIRLEY  SHIRLEY,  M.P. 
fit 

BARRISTER- AT-LAW,    OF  THE  INNER  TEMPLE,  AND  NORTH-EASTERN  CIRCUIT  ;  A0THORcOK' 

"A  SKETCH  OF  THE  CRIMINAL  LAW,"    "AN  ELEMENTARY  TREATISE  ON 

MAGISTERIAL  LAW,"  ETC. 


PHILADELPHIA : 

THE  BLACKSTONE  PUBLISHING  COMPANY. 

1888. 


Entered  according  to  the  Acts  of  Congress,  in  the  year  1888,  by  the  Ei.ack- 

stone  Publishing  Company,  in  the  office  of  the  Librarian  of 

Congress,  at  Washington,  D.  C. 

r 


NOTE. 

We  suggest  to  our  patrons  that,  to  facilitate  the  labor  of  the 
Judges  and  Reporters,  they  cite  theTOP  PAGING  of  books  of 
our  SERIES,  and  add  [TEXT  BOOK  SERIES.]— Editor. 


740SOR 


PREFACE  TO  THE  THIRD  EDITION. 


This  edition  has  been  prepared  for  the  press  with  the  greatest 
care.  Although  no  revolutionary  changes  have  been  introduced, 
I  have  gone  scrupulously  through  the  whole  book,  not  only  tinker 
ing  and  touching  up  the  notes  where  required,  but  rewriting  a 
great  deal;  and,  as  the  result,  I  cannot  doubt  that,  if  the  book  has 
been  useful  before,  it  is  likely  to  be  far  more  so  now.  The  tone  of 
flippancy  and  jocularity,  modified  to  some  extent  in  the  second  edi- 
tion, has  been  almost  discarded  in  this,  so  that  the  serious  and 
soberminded  law  student,  who  never  can  understand  a  joke,  will 
find  little  or  nothing  to  distract  his  attention  from  the  particular 
rule  or  doctrine  of  law  under  consideration. 

I  have  only  to  add  the  expression  of  my  own  personal  gratifica- 
tion at  the  continued  and  increasing  popularity  of  this  collection 
of  Leading  Cases.  In  every  part  of  England  it  is  my  pleasure  to 
meet  young  men  who  tell  me  that  they  have  learnt  all  the  law  they 
know  out  of  my  book,  and  that  wrhat  they  have  learnt  out  of  it  they 
do  not  forget.  It  is  a  considerable  source  of  pride  and  satisfaction 
to  me  to  be  enabled  in  this  way  to  assist  the  studies  of  the  younger 
members  of  my  profession. 


vi  PREFACE  TO  THE  THIRD  EDITION. 

I  have  to  thank  my  learned  friends  of  the  Inner  Temple,  Messrs. 

C.  M.  Atkinson,  E.  H.   Benn,  George  Elliott,  and  A.  C.  Travis,  for 

valuable  assistance  rendered  in  the  preparation  of  this  edition  for 

the  press. 

W.  S.  S. 

2,  Dr.  Johnson's  Buildings, 
The  Temple,  E.G., 

June.  1886. 


PREFACE  TO  THE  SECOND  EDITION. 


The  favorable  reception  given  by  Law  Students  and  the 
younger  members  of  the  Profession  to  the  appearance  of  this 
collection  of  Leading  Cases  has  enabled  me,  within  a  com- 
paratively short  period,  to  correct  any  ascertainable  errors  of 
the  first  edition,  incorporate  the  recent  changes  in  the  law,  re 
write  some  of  the  notes,  and,  I  trust,  improve  the  book  in  its 
form  and  arrangement. 

It  will  be  seen  that  (in  spite  of  a  good  deal  of  sharp,  though 
not  unkind,  criticism)  I  have  not  thought  proper  altogether  to 
discard,  though  I  have  somewhat  modified,  the  free  style  which 
makes  the  book  sui  generis.  The  same  reasons  which  induced 
me  to  adopt  it  apply  to  its  retention  ;  and  it  would  be  hazardous 
to  kick  away  the  ladder  by  which  the  book  has  climbed  thus  far 
into  popularity.  Possibly,  however,  it  may  some  day  be  found 
convenient  to  publish  tico  separate  editions  of  this  treatise  ; — a 
larger  and  more  comprehensive  work  for  practitioners,  and  a 
smaller  and  more  elementary  one  for  students  ;  and  in  that  case 
everything  in  the  shape  of  levity  would,  of  course,  be  eliminated 
from  the  former. 

In  the  meantime,  I  ask  my  graver  readers,  if  they  find  the 
book  sound  in  law,  to  condone  the  style  for  the  sake  of  their  less 
serious  brethren.  For  I  have  received  many  assurances  from 
Students,  whom  the  book  has  helped  to  pass  their  examinations 
with  credit,  that  the  lightness  of  style  has  been  the  means  of 
fixing  legal   principles    firmly    in    their  memories,   and   of   giving 


Vlll  PREFACE   TO    THE    SECOND    EDITION. 

them  a  relish  for  the  study  of  law,  in  a  way  that  other  books 
failed  to  do  ;  and  it  is  idle  therefore  to  cavil  at  mere  freedom  of 
expression. 

I  have  to  thank  my  friends  of  the  Inner  Temple,  Mr.  C.  M. 
Atkinson,  Mr.  George  Elliott,  and  Mr.  C.  S.  Hunter,  and  my 
Cousin,  Mr.  Shirley  Blackburne,  for  kind  assistance  given  me  in 
the  preparation  of  this  edition  for  the  press. 

W.  S.  S. 

6,  Royal  Crescent,  Scarborough, 
February,  1883. 


PREFACE  TO  THE  FIRST  EDITION. 


The  work  now  submitted  to  law  students  differs  considerably  from 
other  collections  of  leading  cases. 

In  the  first  place,  the  number  of  cases  is  much  larger.  "  Fifty 
or  sixty  leading  cases,"  says  the  late  Mr.  Samuel  Warren,  "  thor- 
oughly understood  and  distinctly  recollected,  will  be  found  of  in- 
calculable value  in  practice;  serving  as  so  many  sure  landmarks 
placed  upon  the  trackless  wilds  of  law.  And  why  should  not  the 
number  be  doubled  f  or  even  trebled  f  What  pains  can  be  too  great 
to  secure  such  a  result?" 

My  object  has  been  to  bring  together  and  to  elucidate  the  150 
cases  of  most  general  importance  in  the  Common  Law.  And,  how- 
ever far  short  of  that  object  I  may  have  fallen,  I  think  it  will  be 
admitted  that  any  student  whose  diligence  enables  him  to  master 
their  names  and  principles  will  have  laid  for  himself  a  good  founda- 
tion of  legal  learning. 

The  present  work  differs  also  in  style.  I  have  adopted  it  as  likely 
to  arrest  the  attention,  aid  the  memory,  and  make  the  study  of  the 
law  less  dry  and  repulsive. 

"  That  I  have  written  in  a  semi-humorous  vein,"  says  an  eminent 
authority,  "shall  need  no  apology,  if  thereby  sound  teaching  wins 
a  hearing  from  the  million.  There  is  no  particular  virtue  in  being 
seriously  unreadable." 

Moreover,  now  and  then,  in  the  stating  of  a  case  certain  devia- 
tions from  strict  accuracy  may  be  discovered.  Such  deviations 
(except,  of  course,  where  I  may  have  been  unfortunate  enough  to 
fall  into  errors)  have  been  made  on  the  "reading  made  easy" 
principle.     For  instance,  I  have  treated  nearly  every  case  as  if  at 


X  PREFACE  TO  THE  FIRST  EDITION. 

nisi  prius;  deeming  it  undesirable  to  confuse  the  student,  and 
withdraw  his  attention  from  the  true  point  and  effect  of  the  decision 
by  appeals,  rules  for  new  trials,  &c.  And  the  pleasing,  if  some- 
what rare,  spectacle  is  accordingly,  presented  of  a  successful  liti- 
gant getting  the  speedy  justice  he  is  entitled  to. 

It  will  be  observed,  too,  that  though  the  volume  in  which  a  case 
may  be  found  is  always  given,  the  page  is  not.  My  explanation  of 
this  unusual  proceeding  is  that  I  regard  it  of  extreme  importance 
that  a  practitioner  should  have  at  command  the  exact  volume  in 
which  a  leading  case  is  to  be  found.  To  remember  the  exact  page 
also,  would  be  knowledge  too  excellent  and  unattainable;  a  Macau- 
ley  or  a  Fuller  might  achieve  it,  but  not  an  ordinary  person  But 
by  constantly  seeing  the  reference,  and  taking  a  kind  of  mental 
photograph  of  it,  a  student  of  average  memory  ought  in  a  short 
time  to  find  that  he  knows  exactly  where  an  important  case  is  re- 
ported. 

It  is  almost  unnecessary  to  add  that  the  work  is  put  forward 
simply  as  a  Student's  Manual — always  remembering  that  a  person 
does  not  cease  to  be  a  student  merely  because  he  is  called  to  the  Bar, 
or  admitted  a  Solicitor.  One  of  my  objects  (though,  of  course,  not 
the  chief  one)  has  been  to  act  as  a  guide  to  that  masterly  and  ex- 
haustive work,  Smith's  Leading  Cases.  I  have  adopted  nearly  all 
the  cases  which  appear  as  leading  cases  in  that  collection,  and  have 
sometimes  even  followed  the  lines  of  the  notes. 

I  gratefully  acknowledge  help  and  valuable  suggestions  from 
other  members  of  the  profession,  and  particularly  from  my  learned 
friends,  Mr.  C.  M.  Atkinson,  of  the  Inner  Temple  and  North- 
Eastern  Circuit,  and  Mr.  Wilfred  Allen,  of  the  Inner  Temple;  and 
trust  my  Leading  Cases  will  prove  useful  to  those  for  whom  they 
are  intended. 

W.  S.  S. 

2,  Dr.  Jonxsox's  Buildings, 
3Iarch,  1880. 


LIST  OF  LEADING  CASES. 


PAGE 

Acraman  v.  Moeeice,  (as  to  when  property  passes  on  sale  of  goods)  .    .  202 

ALDOUS  v.  CORNWELL,  (alteration  of  written  instruments) 158 

Armory  v.  Delamieie,  (importance  of  possession  against  wrong-doer)  .  32!) 

Arnold  v.  Poole,  (corporations  must  generally  contract  under  seal)      .  17b' 

Ashby  v.  White,  (action  always  lies  for  infringement  of  a  right)    .    .    .  247 

Atchinson  v.  Baker,  (action  for  breach  of  promise  of  marriage)     .    .    .  207 
Baldly  v.  Parker,  (contract  for  sale  of  a  number  of  trifling  articles 

amounting  in  aggregate  to  value  of  £10,  must  be  in  writing)    .    .  2G 

Baxter  v.  Portsmouth,  (lunatic  may  sometimes  contract) 174 

Beaumont  v.  Reeve,  (mere  moral  consideration  will  not  support  prom- 
ise)       7 

Behn  v.  Burness,    ("now    in  port  of  Amsterdam  "  in  charter-party, 

held  a  warranty) 16!) 

Bergheim  v.  Great  Eastern  Railway  Company,  (railway  company 
not  responsible  for  luggage  in  traveling  compartment  under  trav- 
eller's own  control)    59 

Bickerdike  v.  Bollman,  (notice  of  dishonour  sometimes  unnecessary)  154 

Blower  v.  Great  Western  Railway  Company,  (animal's  "proper 

vice"  excuses  carrier) 51 

Boydell  v.  Drummond,  (separate  documents  containing  contract  can- 
not be  connected  by  oral  evidence) 32 

Brice  v.  Bannister,  (assignment  of  chose  in  action)      225 

Burkmire  v.  Darnell,  ("debt,  default,  or  miscarriage  ") 12 

Butterfield  v.  Forrester,  (contributory  negligence  of  plaintiff  gen- 
erally disentitles  him  to  complain)        268 

Calye'sCase,  (as  to  the  liabilities  of  innkeepers) 47 

Capital  and  Counties  Bank  v.  Henty,  (defamation) 335 

Carter  v.  Boehm,  (concealment  of  material  fact  vitiates  policy  of  insur- 
ance)        187 

Chasemore  v.  Richards,  (damnum  sine  injuria  not  actionable)    ....  247 


Xll  LIST    OF    LEADING    CASES. 

PAGE 

CLARKE  ».  Cuckfield   Union,    (corporations   can   sometimes   contract 

without  seal) 170 

Clayton  v.  Blakey,  (effect  of  leases  void  under  sees.  1  and  2  of  Statute 

of  Frauds) 100 

Coggs  v.  Bernard,  (bailments; 48-- 

COLLEN  r.  WEIGHT,  (agent   who   had   exceeded   authority    in    granting 

lease  taken  to  have  warranted  that  lie  had  authority) 88 

Collins  v.  Blantern,  (illegality) 122 

COOKE  ».  Oxley.  (proposal  can  be  retracted  any  time  before  acceptance)  8 

Corn  foot  v  Fowke,  (liability  of  principal  for  representations  of  agent)  77 

Cowan  ».  Milboubne,  (atheistical  contracts  illegal) 136 

Cox  v.  Hickman,  (participation  in   profits   not   conclusive   evidence    of 

partnership) iy7 

Cox  v.  Midland  Railway  Company,  (implied  authority  of  agents)  74 

Crepps  v.  Durden,  (conditions  of  bringing  actions  against  magistrates)  348 

Ceosby  v.  "Wads woeth,  (growing  grass  "  an  interest  in  land  ")     .    .    .  23 

Cumber  v.  Wane,  (lesser  sum  cannot  be  pleaded  in  satisfaction  of  great- 
er)   r 298 

Cutter  v.  Powell,  (as  to  when  plaintiff  can  sue  on  quantum  meruit)  223 
Dalby  v.  India  and  London  Life  Insurance  Company,  (life  insur- 
ance is  not  a  contract  of  indemnity  merely) 181 

DAREELL  v.  TlBBETTS,  (fire  insurance  contract  of  indemnity  merely)      .  184 

DAVENPOET  v.  Thompson,  (undisclosed  principals) 80 

DA  VIES  r.  Mann,  (contributory  negligence  does  not  disentitle  if  defend 
ant  by  reasonable  care  could  have  averted  consequences  of  plain- 
tiff's negligence). 269 

Denton  v.  Great  Northern  Railway  Company,  (responsibility  of 

railway  company  for  not  running  advertised  train) 63 

DlDSBUEY  v.  THOMAS,  (hearsay  evidence)       363 

DlGGLE  v.  HlGGS,  (wagering  contracts  void,  and  stake  may  be  recovered 

from  stakeholder) • Ill 

DOVASTON  v.  Payne,  (as  to  dedication  and  repair  of  highways)  ....  :;7!» 

Dumpoe  v.  Symms,  (waiver  of  forfeiture,  &c.) 103 

Egeeton  v.  Brown  low,  (public  policy) 120 

Elmore  v.  Stone,  (acceptance  under  17th  section  of  Statute  of  Frauds)  27 

Elwes  v.  Ma  we,  (as  to  tenant's  right  to  remove  fixtures)      97 

FABRIGAS  v.  MOSTYN,  (as  to  torts  committed  and  contracts  made  abroad, 

but  sued  on  here) 384 

Finch  v.  Brook,  (production,  unless  dispensed   with,  essential  to  valid 

tender) 235 

Fletcher  c.  Rylands,  (liabilities  of  persons  who  bring  dangerous  sub- 
stances on  their  lands)  .....' 254 


LIST  OF  LEADING  CASES.  xiii 

PAGE 

George  v.  Clagett,  (set-off  by  purchasers  from  factors) -  I 

Goss  r.  Nugent,  (written  instrument  cannot  be  varied,  but  maybe  waived, 

by  parol) :;4 

HADLEY  v.  Baxkxdale.  (measure  of  damages  in  contract) 239 

Harrison  v.  Bush,  (privileged  communications)      338 

Hebdo.v  f.  West,  (life  insurance) 186 

Hicham  r.  RlDGWAY,  (declarations  contrary  to  interest  of  deceased  per- 
sons admissible  evidence) :;i;<) 

HlLBERY  v.  Hatton,  (innocent  intention  no  defence  in  action  for  wrong- 
ful conversion  of  goods) 332 

HocHSTEE  1:  De  la  Tour,  (suing  before  day  of  performance  has  arrived)     213 
Hopkins  v.  Tanqueray,  (warranty  must  be  part  of  the  contract  of  sale)  163 

Ixdermaur  v.  DAMES,  (person  on  lawful   business   may   maintain  action 

where  trespasser  or  licensee  could  not) 27.~> 

» 
Irons  v.  Smallpiece,  (delivery  or  deed  necessary  to  gift)      :J7:'> 

Jolly  v.  Rees,  (private  arrangement  unknown  to  tradesmen  between  hus- 
band and  wife  may  disable  latter  from  pledging  former's  credit)  .         71 

Jones  v.  Just,  (warranty  of  quality  sometimes  implied) 166 

Jordan  v.  Norton,  (proposal  must  be  accepted  in  terms) 9 

Keech  r.  HALL,  (mortgagee  may  eject  without  notice  tenant  claiming 
under  lease  from  mortgagor  granted  after  mortgage  and  behind 
mortgagee's  back) 106 

KEMBLE  v.  Farren,  (sum  described  by  parties  as  liquidated  damages  may 

be  only  a  penalty) 244 

Kingston,  R.  v.  Duchess  of,  (estoppels) ::<)!) 

Lampleigh  v.  Brathwait,  (past  consideration  will  support  a  promise  if 

moved  by  previous  request) 4 

Langridge  v.  Levy,  (privity  sometimes  necessary  to  action  for  tort)     .    .315 

Le  Blanche  v.  London  &  North  Western  Railway  Company,  (late- 
ness of  trains;  when  one  party  to  a  contract  fails  to  fulfill  his  part 
of  it,  the  other  may  perform  it  for  himself  and  send  in  his  bill;  but 
he  must  not  perform  it  unreasonably  or  oppressively) 64 

Lee  v.  Griffin,  (Lord  Tenterden's  Act  as  to  goods  not  in  esse) 30 

Lickbarrow  v.  Mason,  (right  of  stoppage  in  transitu  defeated  by  nego- 
tiating bill  of  lading)  '.    .    .    '201 

Limpus  v.  London  General  Omnibus  Company,  (master  generally  re- 
sponsible for  torts  of  servant  committed  in  course  of  employment 
and  within  scope  of  authority) 293 

Lopus  v.  Chandelor,  (warranties  and  representations) 160 


XIV  LIST  OF  LEADING  CASES. 

PAGE 

LOWE  v.  Peers,  (contracts  in  restraint  of  marriage  contrary  to  public  pol- 
icy and  void) 133 

Lr.MLEY  v.  Gye,  (damage  need  not  be   legal  and   natural   consequence  of 

tort) 359 

Lynch  v.  Nurdin,  (children  can  be  guilty  of  contributory  negligence)  .    .  273 

MACKINNON  v.  Penson,  (surveyor  of  highways  may  be  liable  for  mis- 
feasance, but  not  for  non-feasance) 279 

Manby   v.   Scott,    (husband  liable  on   wife's  contracts  on    principles  of 

agency)      G9 

Marriott  v.  Hampton,  (money  paid  under  mistake  of  law,  or  by  compul- 
sion of  legal  proceedings,  cannot  generally  be  recovered)     209 

Master  v.  Miller,  (material  alteration  vitiates  written  instrument)     .    .  1.77 

Mellors  v.  Shaw,  (master  employing  incompetent  workmen,  or  using  de- 
fective machinery,  may  be.  responsible  to  servant  hurt  thereby  in 
course  of  service) 282 

Merryweather  v.  NlXAN,  (defendant  mulcted  in  damages  in  action  of 

tort  cannot  sue  co-defenddfet  for  contribution) 358 

Miller  v.  Race,  (bank-notes  pass,  like  cash,  on  delivery) 150 

Mitchel  v.  Reynolds,  (contracts  in  total  restraint  of  trade  illegal)   .    .    .  131 

Montagu  v.  Benedict,  (husband  not  liable  for  goods  not  necessaries  sup- 
plied to  wife,  unless  affirmative  proof  of  his  having  authorised  con- 
tract)       09 

Morley  r.  Attencorough,  (implied  warranty  of  title) 1G4 

Morley  r.  Bird,  (joint  tenancy) 116 

Morritt  v.  North-Eastern  Railway  Company,  (Carriers  Act  protects 

carrier  where  goods  are  sent  by  mistake  beyond  their  destination)    .     56 

Moss  v.  Gallimore,  (mortgagee  giving  proper  notice,  entitled  to  rent  due 

from  mortgagor's  tenant  admitted  before  the  mortgage) 106 

Mountstephen  v.  LAKEMAN,  (guaranty  is  collateral  undertaking  to  an- 
swer for  another  person  who  remains  primarily  liable)     13 

Nepean  v.  Doe,  (when  a  man  has  not  been  heard  of,  by  those  who  natur- 
ally would  have  heard  of  him  had  he  been  alive,  for  seven  years,  a 
presumption  arises  that  be  is  dead)- 397 

Nichols  v.  Marsland,  (vis  major  may  excuse  what  would   otherwise  be 

an  actionable  tort)      254 

Pasley  v.  Freeman,  (fraud  and  deceitful  representations) 312 

Paterson  »>.  Gandasequi,  (as  to  when  the  seller  of  goods  may  sue  the 

undisclosed  principal,  and  when  he  must  stand  or  fall  by  the  agent)    79 

Pearce  r.  Brooks,  (fornicatory  contracts  illegal) 126 

Peek  p.  North  Staffordshire  Railway  Company,  (as  to  what  are 

"just  and  reasonable"  conditions  within  17  &  18  Vict.  c.  31,  s.  7)  .    52 

Perryman  v.  Lister,  (the  action  for  malicious  prosecution) 352 


LIST   OF   LEADING   CASES.  XV 

PAGE 

Peter  v.  Compton,  (the  words  "  not  to  be  performed  "  insect.  4  of  Statute 

of  Frauds  mean  "incapable  of  performance  ") 25 

Peters  v.  Fleming,  ("necessaries"  for  infants  arc  those  things  which  it 

is  reasonable  that  they  should  have") 171 

Poulton  v.  London  and  South-Western  Railway  Company,  (though 
master  is  generally  responsible  for  torts  of  servants  committed  in 
course  of  duty,  servant  cannot  be  taken  to  have  authority  to  do 
what  master  could  not  have  done  himself ) 294 

Price  v.  Torrington,   (declarations  in  course  of  business  of  deceased 

persons  admissible  evidence) 309 

Priestley  v.  Fowler,  (master  not  generally  responsible  to  servant  for 

hurt  sustained  in  service) 282 


Quarman  v.  Burnett  (person  employing  contractor  not  generally  re- 
sponsible for  contractor's  negligence) 290 


Readhead  v.  Midland  Railway  Company,   (carriers  of  passengers 

bound  to  use  the  greatest  care,  but  not  insurers) 263 

Reedie  v.  London  and  North-Western  Railway  Company,  (the 

liabilities  of  a  person  employing  a  contractor) 291 

Rigge  v.  Bell,  (effect  of  leases  void  under  sects  1  and  2  of  Statute  of 

Frauds)      100 

Roberts  v.  Orchard,  (notice  of  action) 350 

Roe  v.  Tranmarr,  (construction  of  written  agreements) 237 

Roux  v.  Salvador,  (abandonment  to  underwriters) 189 

Ryder  v.  Wombwell  ("necessaries"  for  infants) 171 

Scaramanga  v.  Stamp,  (deviation) 192 

Scarfe  v.  Morgan,  (illegality  of  contracts  made  on  Sunday  ;  lien)    .    .  141 

Scott  v.  Avery,  (illegality  of  contracts  ousting  jurisdiction  of  Law  Courts)  128 

Scott  v.  Shepherd,  (  consequential  damages) 259 

Seaton  v.  Benedict,  (responsibility  of  husband  on  wife's  contracts)      .  70 

Semayne  v.  Gresham,  (every  Englishman's  house  not  his  castle)  .    .    .  325 

Sharp  v.  Powell  (proximate  cause) 260 

Simpson  v.  Hartopp,  (goods  privileged  from  distress) 92 

Smith  v.  Marrable,  (implied  warranty  of  fitness  on  letting  furnished 

house) 114 

Smith  v.  Thackerah,  (right  to  support  from  neighbouring  land)  .    .    .  303 

Smout  v.  Ilberry,  (responsibility  of  husband  on  wife's  contracts)      .    .  71 

Soltau  v.  De  Held,  (nuisances) 306 

Spencer  v.  Clark,  (covenants  running  with  the  land) 110 


XVi  LIST    OF    LEADING    CASES. 

PAGE 

Tanner  v.  Smart,  (acknowledgement  saving  the  Statute  of  Limiations)  228 

TABLING  v.  Baxter,  (when  property  passes  on  sale  of  goods) 201 

Taylor  v.  Caldwell,  (impossible  contracts) 147 

TEMPEST  v.  Fizgerald,  (  acceptance  under  29  Car.  II.  c.  3,  s.  17)  ...  28 

Terry  v.  Hutchinson,  (seduction)      309 

Thomas  v.  Rhymney  Railway  Company,  (responsibility  of  company 

issuing  through  ticket  for  accident  happening  off  their  line)  .    .    .  287 

TiioKNBOROW  v.  Whitacre,  (adequacy  of  consideration  not  required;  .  1 

Todd  v.  Flight,  (nuisances  from  ruinous  premises) 298 

Turner  v.  Mason,  (wrongful  dismissal) 214 

TWYNE'S  CASE,  (gifts  defrauding  creditors) 219 

Tvrie  v.  Fletcher,  (return  of  premium) 190 

Vaughan  v.  Taff  Vale  Railway  Company,  (negligent  keeping  of  fire)  300 

Vatjx  v.  Newman,  (trespass  ab  initio)      322 

Wain  v.  Warlters,  (consideration  of  guaranty) 10 

Waite  v.   North-Eastern  Railway  Company,  (contrihutary  negli- 
gence;  identification) 271 

WAUGH  r.  Carver,  (how  far  sharing  in  the  profits  is  evidence  of  part- 
nership)       190 

Wells  v.  Abrahams,  (tort  amounting  to  felony) 341 

WENMAN  ».  Ash,  (husband  and  wife  two  persons  for  some  purposes)      .  390 
Whitcher  v.  Hall,  (alteration  oi  terms  between  creditor  and  debtor 

releases  surety) 18 

Wiiitcombe  v.  Whiting,  (acknowledgements  by  joint  contractors)     .    .  231 

White  Cross  Wire  Company  v.  Savill,  (average)       194 

WlGGLESWORTH  v.   Dallison,   (evidence  of  custom   to  qualify  written 

contract) 38 

Wilson  v.  Brett,  (though  gratuitous  bailee  is  bound  to  slight  dilgence 

only,  he  must  use  special  skill  if  he  possesses  it) 41 

Wood  r.  Leadbitter,  (mere  licence  is  revocable  at  pleasure) 118 

Yates  v.  Jack,  (ancient  lights)      250 

Young  v.  Grote,  (estopped  by  negligence) 400 


SHIRLEY'S  LEADING  CASES. 


CONTRACTS. 

1.  Thornborow  v.  Whitacre. — Consideration  need  not  he  adequate. 

2.  Lampleigh  v.  Brathwait. — Past  consideration  sometimes  sufficient. 

3.  Beaumont  v.  Eeeve. — Past  seduction  no  consideration. 

4.  Cooke  v.  Oxley. — Proposal  not  binding  before  acceptance. 

5.  Jordan  v.  Norton. — Parties  must  contract  ad  idem. 

6.  Burkmire  v.  Darnell.  \  Person   for  whom   any  one   is   surety  is 

7.  Mountstephen  v.  Lakeman.  j      himself  primarily  liable. 

8.  Wain  v.  Warlters. — Consideration  of  guarantee  must  exist  but  need  not 

appear  in  document. 

9.  Whitcher  v.  Hall. — Alteration    of  terms  between  creditor  aud  debtor 

releases  surety. 

10.  Crosby  v.  Wadsworth. — Growing  grass  an  ''  interest  in  land." 

11.  Peter  v.  Compton. — "  Not  to  be  performed  "  =  incapable  of  performance. 

12.  Baldey  v.  Parker. — If  total  comes  to  £10,  within  17th  sect. 

13.  Elmore  v.  Stone.  \  Acceptance  under  17th  sect,  may  be  construc- 

14.  Tempest  v.  Fitzgerald,  j      tive. 

15.  Lee  v.  Griffin. — Goods  to  be  made  or  delivered  at  future  time  brought 

within  Statute  of  Frauds  by  Lord  Tenterden's  Act. 

16.  Boydell  v.  Drtjmmond. — Separate  documents  containing  contract  can- 

not be  connected  by  oral  evidence. 

17.  Goss  v.  Nugent. — Written  instrument  cannot  be  varied  by  parol  evidence. 

18.  Wigglesworth  v.  Dallison. — In  contractis  tacite  insunt  quse  sunt  moris  et 

consuetudinis. 

19.  Coggs  v.  Bernard.  \  Gratuitous  bailees  responsible  for  gross  negligence. 

20.  Wilson  v.  Brett,     j      Person  having  skill  must  use  it. 

21.  Calye's  Case. — Liabilities  of  innkeepers  at  common  law  and  under  Act 

of  1862. 

22.  Blower  v.  G.  W.  Ey.  Co. — Animal's  "proper  vice"  excuses  carrier. 

23.  Peek  v.  N.  Staff.  Ey.  Co. — As  to  "just  and  reasonable  "  conditions. 

24.  Morritt  v.  N.  E.  Ey.  Co. — Carriers  Act  protects  carrier  when  goods  are 

sent  by  mistake  beyond  their  destination. 

25.  Bergheim  v.  G.  E.  Ey.  Co. — Eailway  company  not  responsible  for  lug- 

gage  in  travelling  compartment.     R  ibilit     of  railway   compa. 

26.  Denton  v.  G.  N   EY.  Co.  V     f         *  rmmi        ^  late^S3 

27.  Le  Blanche  v.  L.  &  N.  W  Ey.  Co.  {       f  trai 

28.  Manby  v.  Scott.  '  ' 

29.  Montagu  v.  Benedict.  The  principle  on  which  a  husband  is  respon- 

30.  Seaton  v.  Benedict.  [•      sible  for  his  wife's  debts  is  that  she  is  his 

31.  Jolly  -v.  Eees.  t  agent. 

32.  Smout  v.  Ilberry.  J 

33.  Cox  v.  Midland  Counties  Ey.  Co. — Extent  of  agent's  authority. 

34.  Cornfoot  v.  Fowke. — Liability  of  principal  for  representations  of  agent. 

35.  Paterson  v.  Gandasequi.  \  As  to  when  disclosed  and  undisclosed  princi- 

36.  Davenport  v.  Thomson,     j      pals  can  be  sued  and  when  not. 

37.  George  v.  Clagett. — Set-off  against  principal  by  purchaser  from  factor. 

38.  Collen  v.  Wright. — Agent  exceeding  authority  taken  to  have  warranted. 

39.  Simpson  v.  Hartopp. — Things  being  used  are  privileged  from  distress. 

40.  Elwes  v.  Maw. — Eight  to  remove  agricultural  fixtures — Act  of  1883. 

41.  Eigge  v.  Bell.  \  Lease  may  be  void  for  some  purposes  yet  good  for 

42.  Clayton  v.  Blakey.  j      others. 

43.  Dumpor  r.  Symms. — As  to  waiver  of  and  relief  against  forfeiture,  &c. 

44.  Keech  v.  Hall.         \  Tenants  let  in  by  mortgagor  before  and  after  mort- 

45.  Moss  v.  Gallimore.  J      gage  respectively. 
2  COMMON  LAW. 


XV111  SHIRLEY'S    LEADING    CASES. 

46.  Spencer  v.  Clark. — Covenants  running  with  the  land. 

47.  Smith  v.  Marrable. — Lessor  of  furnished  house  impliedly  covenants  that 

.  it  is  fit  for  habitation. 

48.  Morley  v.  Bird. — Bight  of  survivorship  is  an  incident  of  joint  tenancy. 

49.  Wood  v.  Leadbitter. — Mere  licence  is  revocable. 

50.  Egerton  v.  Beownlow. — Contracts  violating  public  policy  are  void. 

51.  Collins  v.  Blantern. — Illegality  vitiates  even  contracts  under  seal. 

52.  Pearce  v.  Brooks. — Immoral  contracts  illegal. 

53.  Scott  ?•.  Avery. — As  to  contracts  ousting  jurisdiction  of  law  courts. 

54.  Mitchell  v.  Reynolds. — Contracts  in  total  restraint  of  trade  illegal. 

55.  Lowe  v.  Peers. — Contracts  in  restraint  of  marriage  bad. 

56.  Cowan  v.  Milbourne. — Atheistical  contracts  illegal. 

57.  Scarfe  v.  Morgan. — Contracts  made  on  Sunday  sometimes  illegal. 

58.  Diggle  v.  Higgs. — Wagering  contracts  void,  and  stake  maybe  recovered 

from  stakeholder. 

59.  Taylor  v.  Caldwell. — As  to  impossible  contracts. 

60.  Miller  v.  Race. — Bank-notes,  &c,  pass,  like  cash,  on  delivery. 

61.  Bickerdike  v.  Bollman. — Notice  of  dishonour  is  sometimes,  but  very 

rarely,  unnecessary. 

62.  Master  v.  Miller,        \  The  material  alteration  of  a  written  instrument 

63.  Aldous  v.  Cornwell.  J  vitiates  it. 

64.  Lopus  v.  Chandelor. — Warranties  and  representations. 

65.  Hopkins  v.  Tanqueray. — Warranty  must  be  part  of  contract  of  sale. 

66.  Morley  v.  Attenborough. — Whether  any  implied  warranty  of  title. 

67.  Jones  v.  Just. — Warranty  of  quality  sometimes  implied. 

68.  Behn  v.  Burness. — "Now  in  port  of  Amsterdam  "  in  charter-party,  held 
a  warranty. 

Necessaries  "  for  infants  are  those  things  which 


6Q  Pftfrs  7'  Ft  eminc-  f  ' '  Necessaries  ' '  for  infants  are  those  things  which 
by.  meters  i.  t  LEMING       j  essential  to  the  reasonable  enjoyment 

70.  Ryder  v.  Wombwell.  ,.,-,.  ,■      ._  v*    ■     .  j-        J  J 

t         of  life,  according  to  their  station. 

71.  Baxter  v.  Portsmouth. — Lunatic  may  be  liable  on  executed  contract. 

72.  Arnold  v.  Poole!  "I  Corporations   must  generally  con- 

73.  Clarke  v.  The  Cuckfield  Union,  j  tract  under  their  common  seal. 
74  MTTT.r.r.M  ,<  Wttbt  f  Assured  cannot  recover  more  than  amount  of 
/4.  mebdon  i.  west                 i          insurable  interest,  but  life  insurance  not 

75.  Dalby  r.  India,  &c,  Co.  j         ft  contract  of  indemnity  merely. 

76.  Darrell  v.  Tibbitts. — Fire  insurance  contract  of  indemnity  merely. 

77.  Carter  v.  Boehm. — Concealment  of  material  fact  vitiates  policy  of  insur- 

ance. 

78.  Roux  v.  Salvador. — Assured  claiming  for  constructive  total  loss  must 

abandon. 

79.  Tyrie  v.  Fletcher. — No  return  of  premium  where  risk  has  once  com- 

menced. 

80.  Scaramanga  r.  Stamp. — Ship  may  deviate  to  save  life  but  not  property. 

81.  Whitecross  Wire  Co.   v.   Savill. — Loss  arising  from  throwing  goods 

overboard  to  save  ship  rateably  adjusted  between  owners  of  the  goods 
on  board. 

82.  Waugh  v.  Carver  \  Participation  in  profits  not  conclusive  evidence  of 

83.  Cox  v.  Hickman.     J  partnership. 

85:  IcSmTn  ";.  m™ce.  } As  to  -hen  *™^  passes  on  sale  of  ^oods- 

86.  Lickbarrow  v.  Mason. — Right  of  stoppage  in  transitu  defeated  by  ef- 

fective negotiation  of  bill  of  lading. 

87.  Atchinson  v.  Baker. — Defences  to  action  for  breach  of  promise  to  marry. 

88.  Marriott?'.  Hampton. — Money  paid  under  compulsion  of  legal  proceed- 

ings, or  through  mistaking  the  law,  cannot  be  recovered.     , 

89.  Hochster  v.  De  La  Tour. — Suing  before  day  of  performance. 

90.  Turner  v.  Mason.- — Valid  grounds  for  dismissing  servant. 

91.  Twyne's  Case. — Gifts  defrauding  creditors  are  void. 

92.  Cutter  v.  Powell. — When  plaintiff  can  sue  on  quantum  meruit. 


SHIRLEY'S    LEADING    CAKES.  XIX 

93.  Brice  v.  Bannister. — Assignment  of  chose  in  action  allowed  by  Judica- 

ture Act. 

94.  Tanner  v.  Smart. — Acknowledgments  taking  debts  out  of  Statute  of 

Limitations. 

95.  Whitcomb  v.  Whiting. — Effect  of  acknowledgment  by  joint  contractor. 

96.  Cumber  v.  Wane. — Payment  of  lesser  sum  cannot  be  pleaded  in  satisfac- 

tion of  greater. 

97.  Finch  v.  Brook. — Production,  unless  dispensed  with,  essential  to  valid 

tender. 

98.  Roe  v.  Tranmarr. — Construction  of  written  contracts. 

99.  Hadley  v.  Baxendale. — Measure  of  damages  in  contract. 

100.   Kemble  v.  Farren. — Whether  penalty  or  liquidated  damages,  is  a  ques- 
tion of  intention. 


TORTS. 

101.  Ashby  v.  White.  •      \  Injuria  sine   damno   is   actionable,   but    not 

102.  Chasemore  v.  Richards.  J      damnum  sine  injuria. 

103.  Yates  v.  Jack. — Owner  of  ancient  lights  entitled  to  protection  irrespec- 

tively of  particular  use  to  which  premises  may  be  at  time  put, 

104.  Fletcher  v.  Rylands.   \  Liabilities  of  persons  bringing  dangerous  sub- 

105.  Nichols  v.  Marsland.    J      stances  on  to  their  land. 

106.  Scott  v.  Shepherd.  )  A  man  will  generally  be  taken  to  contemplate  the 

107.  Sharp  f.  Powell,     J      consequences  of  his  tort. 

108.  Readhead  v.  Midland  Ry.  Co. — Carriers  of  passengers  not  insurers, but 

must  take  very  great  care  of  them. 

109.  Butterfield  v.  Forrester.   \  As  to  when  contributory  negligence  dis- 

110.  Da  vies  v.  Mann.  j      entitles  and  when  not. 

111.  Waite  v.  N.  E.  Ry.  Co. — Innocent  person  may  sometimes  be  bound  by 

contributory  negligence  of  someone  else. 

112.  Lynch  v.  Nurdin — As  to  contributory  negligence  of  children. 

113.  Indermaur  v.  Dames. — Persons  on  lawful  business  can  maintain  action 

for  injury  received  on  defendant's  premises. 

114.  McKinnon  v.  Penson. — No  action  allowed  against  county  surveyor  for 

inj  ury  received  through  bridge  being  out  of  repair. 

115.  Priestley  v.  Fowler.  \  Master  not  generally  responsible  to  servant  for 

116.  Mellors  v.  Shaw.  j      hurt  sustained  in  service. 

117.  Thomas  v.  Rhmyney  Ry.  Co. — Company  issuing  ticket  responsible  for 

injury  off  their  line  through  other  company's  negligence. 

118.  Quarman  v.  Burnett.  "I  Person  employing  contractor  not  generally 

119.  Reedie  v.  L.  &  N.  W.  Ry.  Co.  J      responsible  for  contractor's  negligence 

.,„„    T  T    rs      ■  ^  /-(      f  Master  generally  responsible  for  torts 

120.  Limpus  v.  L  Gen^  Omnibus  Co.  f  J^  Jmmi?ted  in  course  of 

121.  Poulton  v.  L.  &  S.  W.  Ry.  Co.     \     employment. 

122.  Todd  v.  Flight. — Landlord  letting  premises  in  ruinous  condition  liable 

for  nuisance  arising  thereby. 

123.  Vaugiian  v.  Taff  Vale  Ry.  Co. — As  to  liability  of  railway  companies 

for  damage  caused  by  sparks. 

124.  Smith  v.  Thackerah. — As  to  right  of  support  from  neighbouring  land. 
1:25.  Soltau  v.  De  Held. — Public  nuisance  is  sometimes  actionable. 

126.  Terry  v.  Hutchinson. — Proof  of  serrvice  required  in  action  of  seduction. 

127.  Pasley  v.  Freeman. — False  and  fraudulent  representation  generally  ac- 

tionable. 

128.  Vaux  v.  Newman. — Trespass  ab  initio. 

129.  Semayne  v.  Gresham. — ''Every  Englishman's  house  is  his  castle." 

130.  Armory  v.  Delamirie. — Possession  nine-tenths  of  the  law. 

131.  Hilbery  v.  Hatton. — Innocent  person  may  be  guilty  of  conversion. 

132.  Capital  and  Counties  Bank  v.  Henty. — When  many  good  interpreta- 

tions of  document  put  forward  as  libellous  and  only  one  bad  one,  it 
ought  not  to  be  hastily  condemned. 


XX  SHIRLEY'S    LEADING    CASES. 

133.  Harrison  v.  Bush. — Speech  or  writing  the  result  of  exercise  of  right  or 

discharge  of  duty  privileged  though  not  true. 

134.  Wells  v.  Abrahams.     As  to  the  difficulty  of  the  case  where  a  tort  is  also 

a  felony. 

135.  Langridge  v.  Levy. — Privity  sometimes  essential  to  maintain  action  for 

tort. 

136.  Crepps  v.  Durden. — Actions  against  magistrates  and  cumulative  penal- 

ties. 

137.  Roberts  v.  Orchard. — Notice  of  action  sometimes  necessary. 

138.  Perryman  v.  Lister. — Four  things  to  be  proved  in  action  for  malicious 

prosecution. 

139.  Merryweather  v.  Nixan. — No  contribution  between  defendants  in  tort. 

140.  Lumley  v.  Gye. — The  measure  of  damages  is  looser  in  tort  than  in  con- 

tract. 

MISCELLANEOUS  CASES. 

141.  Doe  d.  Didsbury  v.  Thomas. — Hearsay  evidence  sometimes  allowed. 

v>  t  ("Declarations  of  deceased  persons  in  course  of 

144.  I'RICE  v.  iorringtoj*.       1      business   or  contrary  to  interest,  sometimes 

143.  HIGHAM  V.  RlDGWAY.  |_       allowed  \n  evidenc/ 

144.  Irons  v.  Smallpiece. — Delivery  or  deed  necessary  to  gift. 

145.  Dov aston  v.  Payne. — As  to  dedication,  repair,  and  extinguishment  of 

highways. 

146.  Fabrigas  v  Mostyn. — Tort  committed  abroad  may  be  sued  on  here. 

147.  Wenman  v.  Ash. — Husband  and  wife  two  persons  for   many  purposes, 

even  at  common  law. 

148.  Nepean  v.  Doe. — Presumption  of  death  after  seven  years'  absence. 

15a  Young  If  Grote.    }  EstoPPel  ma^  be  b?  record'  b^v  deed>  or  b*v  conduct. 

Equity  Cases  more  particularly  bearing  on  the  Common  Law. 

1.  Pusey  v.  Pusey. — Specific  delivery  of  ancient  horn  decreed. 

2.  Lester  v.  Foxcroft. — As  to  part  performance  and  parol  agreements. 

3.  Woollam  v.  Hearn. — Parol  evidence  cannot  vary  written  contract. 

4.  Ward  v.  Turner. — Delivery  essential  to  donatio  mortis  causd. 

5.  Richardson  v.  Langridge. — As  to  difference  between  yearly  tenancies 

and  tenancies  at  will. 

6.  Lake  v.  Gibson. — Partners  purchasing  land  are  tenants  in  common. 

7.  Russel  v.  Russel. — Deposit  of  title  deeds  is  an  equitable  mortgage. 

8.  Thornborough  v.  Baker. — Mortgagee's  executor  entitled  to  mortgage 

money. 

9.  Row  v.  Dawson. — Chose  in  action  assignable  in  equity. 

10.  Dering  v.  Winchelsea. — Sureties  bound  by  different  instruments  liable 

to  contribution. 

11.  Rees  v .  Berrington. — Surety  released  by  creditor  giving  time  to  debtor. 

12.  Fox  v.  Bishop  of  Chester. — As  to  simoniacal  contracts. 

13.  Sloman  v.  Walter. — Penalty  for  collateral  object  relieved  against. 

14.  Landsdowne  v.   Landsdowne. — Mistake  of   law  sometimes  relieved 

against. 

15.  Stapilton  v.  Stapilton. — Compromise  of  doubtful  right  binding. 

16.  Cuddee  v.  Rutter. — No  specific  performance  when  damages  would  af- 

ford compensation. 

17.  Scott  v.  Tyler. — Conditions  unduly  restraining  marriage  void. 

18.  Chesterfield  v.  Janseen. — Bargains  with  expectant  heirs  may  be  set 

aside. 

19.  Tyrringham's  Case. — Common  appendant  differs  from  common  appur- 

tenant in  being  connected  with  arable  lauds  and  in  other  ways. 

20.  Earl  of  Oxford's  Case. — As  to  principles  on  which  equity  will  inter- 

fere to  restrain  proceedings  at  law. 


LEADING  CASES  IN  THE  COMMON  LAW. 


Adequacy  of  Consideration  not  required. 

THORNBOROW  v.  WHIT  ACRE.  [1.] 

[2  Ld.  Raym.  1164  (1705).] 

"Farmer  Whitacre,"  said  the  cunning  Thornborow, 
"  let  us  strike  a  bargain.  If  I  pay  you  a  five  pound 
note  down  now,  will  you  give  me  2  rye  corns  next  Mon- 
day, 4  on  Monday  week,  8  on  Monday  fortnight,  and  so 
on, — doubling  it  every  Monday, — for  a  year."  Whitacre 
jumped  at  it;  five  pounds  never  were  earned  so  easily. 
So  the  thing  was  settled.  But  when  our  yokel  friend 
came  to  calculate  how  much  rye  he  should  have  to  de- 
liver, he  found  that  it  came  to  more  than  tvas  grown 
in  a  year  in  all  England. 

Thornborow,  however,  brought  his  action  and  suc- 
ceeded; for  the  court  said  that  "though  the  contract 
was  a  foolish  one,  it  would  hold  in  law."  There  was  a 
consideration,  and  as  for  the  other  point  raised  for  the 
defendant,  that  it  was  an  impossible  contract,  it  was 
only  impossible  in  respect  of  the  defendant's  ability. 


Every  promise  (when  the  contract  is  not  by  deed)  requires  a  Necessity 
consideration  to  support  it.     Nuda  pactio  non  parit  obligationem.  'or  con7 
But  law  courts  are  satisfied  with  the  existence  of  a  consideration, 
and  do  not  trouble  themselves  about  its  adequacy.    No  matter  how  Adequacy 
slight  may  be  the  benefit  to  the  promisor,  or  the  detriment  to  the  not  re- 
promisee  (whichever  the  consideration  may  happen  to  be),  it  is  quired. 


ADEQUACY  OF  CONSIDERATION. 


Slight  acts 
which  may 
be  con- 
sideration. 


Shadwell  v. 
Shadwell. 


Considera- 
tion of  bills 
and  notes. 


sufficient  to  support  the  promise.  In  one  case  a  man  allowed  a 
friend  to  take  some  boilers  and  weigh  them.  Afterwards  he 
brought  an  action  against  him  for  not  keeping  his  promise  to  re- 
store them,  after  weighing,  in  as  good  condition  as  they  were  be- 
fore. For  this  promise  it  was  held  that  the  mere  allowing  to 
weigh  was  a  sufficient  consideration  (a).  So,  in  another  case,  it 
was  held  that  the  surrender  of  the  possession  of  a  worthless  docu- 
ment was  a  sufficient  consideration  (b).  Forbearance  to  sue  in  the 
case  of  a  doubtful  claim  is  also  a  sufficient  consideration  (c). '  And 
so  is  labour,  though  unsuccessful  (d).  But  for  a  man  to  agree  to 
do  something  he  is  already  bound  to  do  canuot  be  a  consideration. 
If,  however,  the  agreement  is  for  the  man  to  do  something  slightly 
in  excess  of  his  duty,  it  will  be  enough  (e). 

A  curious  case  on  this  branch  of  the  law  is  Shadwell  v.  Shad- 
well (/),  where  an  amiable  old  gentleman  wrote  to  his  nephew — 

"My  dear  L., 

"  I  am  glad  to  hear  of  your  intended  marriage  with  E.  N.,  and,  as 
I  promised  to  assist  you  at  starting,  I  am  hajypy  to  tell  you  that  I  will 
pay  you  £150  yearly  during  my  life,  and  until  your  annual  income, 
derived  from  your  profession  of  a  Chancery  barrister,  shall  amount  to 
600  guineas,  of  which  your  own  admission  will  be  the  only  evidence  1 
shall  receive  or  require. 

"  Your  ever  affectionate  uncle, 

liC.  S." 

In  an  action  which  it  became  necessary  to  bring  against  the  old 
man's  executors  it  was  held  that  this  letter  amounted  to  a  request 
to  his  nephew  to  marry  E.  N.,  and  that  his  promise  therefore 
had  a  consideration,  and  was  binding. 

The  student  should  also  refer  to  the  recent  case  of  Creed  ».  Hen- 
derson, (ff)  where  the  promise  of  a  Mr.  Hudson  to  give  £20,000 
to  the  Jubilee  Fund  of  the  Congregational  Union  was  held  not 
binding.  Mr.  Hudson,  after  paying  some  instalments  of  the  mo- 
ney, had  died,  and  this  was  an  unsuccessful  assault  on  his  estate. 

In  the  case  of  bills  of  exchange  and  promissory  notes  a  conside- 
ration is  presumed  till  the  contrary  is  shown.  The  Bills  of  Ex- 
change Act,  1882  (45  &  46  Vict,  c.  61),  deals  with  the  considera- 
tion ior  a  bill  in  the  following  sections: — 

"27.  (1.)  Valuable  consideration  for  a  bill  may  be  constitued 
hy- 

(«)  Any  consideration  sufficient  to  support  a  simple  contract; 


(a)  Bainbridge  v.  Firmstone, 
8  Ad.  &  E.  743. 

(b)  Brooks  v.  Haigh,  10  Ad. 
&  E.  323. 

(c)  Longridge  v.  Dorville,  5 
B.  &  Aid.  117,  and  see  the  equi- 
ty leading  cases  Stajnlton  v.  Sta- 
pilton,  and  Gordon  v.  Gordon,  p. 
410,  on  family  arrangements. 


(d)  Lampleighx.Brathwait,  p.  4 

(e)  England  v.  Davidson,  11 

A.  &  E.   856,   and  Hartley  v. 
Ponsonbv,  .7  E.  &  B.  872. 

(/)  !)  C.   B.    X.  S.,  159;  and 
see  Bell  v.  Bassett,  52  L.  J.,  Q. 

B.  D.,  22;  and  Harston  v.  Har- 
vey, 1  C.  &  E.,  404. 

(/)  54  L.  J.,  Ch.  811. 


ADEQUACY    OF    CONSIDERATION.  i 

(6.)  An  antecedent  debt  or  liability.  Such  a  debtor  liability  is 
deemed  valuable  consideration  whether  the  bill  is  payable 
on  demand  or  at  a  future  time. 

(2.)  Where  value  has  at  any  time  been  given  for  a  bill,  the 
holder  is  deemed  to  be  a  holder  for  value  as  regards  the  acceptor, 
and  all  parties  to  the  bill  who  became  parties  prior  to  such  time. 

(3.)  Where  the  holder  of  a  bill  has  a  lien  on  it,  arising  either  Bills  of  Ex- 
from  contract  or  by  implication  of  law,  he  is  deemed  to  be  a  holder  change  Act, 
for  value  to  the  extent  of  the  sum  for  which  he  has  a  lien.  loo.-. 

28.  (1.)  An  accommodation  party  to  a  bill  is  a  person  who  has 
signed  a  bill  as  drawer,  acceptor,  or  indorser,  without  receiving 
value  therefor,  and  for  the  purpose  of  lending  his  name  to  some 
other  person. 

(2.)  An  accommodation  party  is  liable  on  the  bill  to  a  holder  for 
value;  and  it  is  immaterial  whether,  when  such  holder  took  the 
bill,  he  knew  such  party  to  be  an  accommodation  party  or  not. 

29.  (1.)  A  holder  in  due  course  is  a  holder  who  has  taken  a  bill, 
complete  and  regular  on  the  face  of  it,  under  the  following  con- 
ditions; namely, 

(a.)  That  he  became  the  holder  of  it  before  it  was  overdue,  and 
without  notice  that  it  had  been  previously  dishonoured,  if 
such  was  the  fact: 

(b.)  That  he  took  the  bill  in  good  faith  and  for  value,  and  that 
at  the  time  the  bill  was  negotiated  to  him  he  had  no  notice 
of  any  defect  in  the  title  of  the  person  who  negotiated  it. 

(2.)  In  particular  the  title  of  a  person  who  negotiates  a  bill  is 
defective  within  the  meaning  of  this  Act  when  he  obtained  the 
bill,  or  the  acceptance  thereof,  by  fraud,  duress,  or  force  and  fear, 
or  other  unlawful  means,  or  for  an  illegal  consideration,  or  when 
he  negotiates  it  in  breach  of  faith,  or  under  such  circumstances 
as  amount  to  a  fraud. 

(3.)  A  holder  (whether  for  value  or  not),  who  derives  his  title 
to  a  bill  through  a  holder  in  due  course,  and  who  is  not  himself 
a  party  to  any  fraud  or  illegality  affecting  it,  has  all  the  rights  of 
that  holder  in  due  course  as  regards  the  acceptor  and  all  parties 
to  the  bill  prior  to  that  holder. 

30.  (1.)  Every  party  whose  signature  appears  on  a  bill  isprimd 
facie  deemed  to  have  become  a  party  thereto  for  value. 

(2.)  Every  holder  of  a  bill  isprimd  facie  deemed  to  be  a  holder 
in  due  course;  but  if  in  an  action  on  a  bill  it  is  admitted  orproved 
that  the  acceptance,  issue,  'or  subsequent  negotiation  of  the  bill 
is  affected  with  fraud,  duress,  or  force  and  fear,  or  illegality,  the 
burden  of  proof  is  shifted,  unless  and  until  the  holder  proves 
that,  subsequent  to  the  alleged  fraud  or  illegality,  value  has  in 
good  faith  been  given  for  the  bill." 


ADEQUACY    OF    CONSIDERATION. 


Inadequacy 
may  suggest 
fraud. 


Stranger  to 
considera- 
tion. 


Failure  of 
considera- 
tion. 


The  case  of  Stott  v.  Fairlarnb  (</),  and  Currie  v.  Misa  (h),  should 
be  referred  to  with  regard  to  an  antecedent  debt  or  liability  as 
consideration  for  a  promissory  note.  Where  there  exists  a  debtor 
liability  in  praesenti,  payable  in  future,  and  a  state  of  things  «x- 
ist  which  entitles  the  debtor  to  make  payment  at  once,  the  giving 
of  a  promissory  note  is  a  conditional  payment,  and  is  not  with- 
out consideration. 

Although,  as  has  been  said  above,  it  is  all  very  well  in  theory 
that  it  does  not  matter  what  the  consideration  is,  provided  there  is 
one,  yet,  if  the  inadequacy  is  very  striking  indeed,  the  presump- 
tion of  fraud  arises,  and  a  defendant  may,  on  that  ground,  dis- 
pute his  liability.  The  clown  Whitacre  might  have  done  this. 
As  it  was,  he  simply  demurred  to  the  declaration,  and  the  issue 
of  fraud  was  not  raised. 

A  stranger  to  the  consideration  cannot  sue  upon  a  contract,  al- 
though it  may  have  been  entered  into  expressly  for  his  benefit, 
and  he  may  be  a  near  relation  of  the  person  for  whom  the  consid- 
eration moved  (('). 

Money  paid  away  can  sometimes  be  recovered  back  on  the  ground 
of failure  of  consideration^. g.,  money  paid  for  the  services  of  another 
which  are  performed  so  badly  as  to  be  quite  useless  to  the  employer 
(k).  But  unless  the  consideration  be  severable.and  the  price  appor- 
tionable  accordingly  (7),  the  failure  must  be  total,  and  not  merely 
pa rtial.  A  man  not  long  ago  apprenticed  his  son  to  a  watchmaker, 
and  paid  a  heavy  premium.  In  a  year's  time  the  watchmaker  died, 
but  it  was  held  that  not  a  farthing  of  the  premium  could  be  recov- 
ered, because  the  lad  had  got  a  year's  teaching  outof  the  deceased, 
and  therefore  the  failure  of  consideration  was  only  partial  (m). 

The  subject  of  impossible  contracts  is  treated  of  under  Taylor 
v.  Caldwell,  p.  147. 


Past  Consideration  to  support  promise  must  be 
moved  by  previous  request. 


[2.]  LAMPLEIG-H  v.  BRATHWAIT. 

[Hob.  105  (1613).] 

Brathwait,   having   committed   a   murder,    requested 
Lampleigh  to  take  certain  journeys  and  use  all  his  in- 


fo) 49  L.  T.  N.  S.  525. 

('//)  L.  R.  10  Ex.  153. 

(i)  Tweddle  v.  Atkinson,  1  B. 
&  S.  393, 

(k)  Bostock  v.  Jardine,  3  H.  &     54  Ch.  478 
C.  700. 


(I)  Devaux  v.  Conolly,  8  C.  B. 
640. 

(m)  Whincup  v.  Hughes,  L.  R. 
6  C.  P.  78;  Ferns  v.  Carr,  L.  J. 


PAST    CONSIDERATION.  j 

fluence  with  a  view  to  a  pardon.  After  the  journeys 
had  been  taken  and  the  services  rendered,  Brathwait 
promised,  as  a  mark  of  his  gratitude,  to  give  his  friend 
£100.  It  was  held  that  this  promise  was  binding,  not- 
withstanding that  it  had  been  made  in  consideration  of 
services  rendered  in  the  past.  The  defendant  had  re- 
quested plaintiff  to  do  what  he  had  done,  and  therefore 
his  doing  it  could  not  be  looked  upon  as  a  mere  volun- 
tary courtesy. 

Services  rendered  in  the  past,  however  great,  are  not  generally  Pagt  consid- 
a  sufficient  consideration  to  support  a  promise.  If  a  plaintiff,  eration. 
suing  on  a  warranty,  were  to  say  in  his  statement  of  claim  that 
"in  consideration  that  he  (the  plaintiff)  had  bought  a  horse  of  the 
defendant,  the  defendant  promised  that  it  was  sound,"  such  a 
pleading  might  be  demurred  to.  No  sufficient  consideration 
would  appear  for  the  defendant's  illegal  promise  (n). 

But  a  past  consideration  will  support  a  promise  when  it  con- 
sists of  services  rendered  by  the  plaintiff  at  the  defendant's  re- 
quest. 

This  request  (Brathwait's  for  instance)  is  generally  express;  Request., 
the  promisor  has  actually  asked  the  promisee  to  do  the  service. 
But  sometimes  the  law  has  to  imply  the  request,  e.  g. — 

1.    Where  the  ■plaintiff  has  been  compelled  to  do  ivhat  the  defendant  Compulsion 
was  legally  bound  to  do.  of  promisee. 

Not  content  with  presuming  that  the  defendant  requested  the 
plaintiff  to  settle  for  him,  the  law  here  goes  on  to  presume  that, 
in  consideration  of  that  settlement,  the  defendant  promised  the 
plaintiff  to  indemnify  him.  Both  request  and  promise  are  im- 
plied. The  acceptor  of  a  bill  of  exchange  must  pay  it  when  due; 
he  is  primarily  liable  on  it.  If  he  does  not  pay  it,  the  holder 
may  sue  one  of  the  indorsers  and  make  him  pay  it.  In  such  a 
case  the  law  presumes  that  the  acceptor  asked  the  indorser  to 
pay  it,  and  presumes  farther  that  the  acceptor  subsequently 
promised  to  reimburse  him  (o).  And  whenever  a  surety  is  called 
onto  pay  his  principal's  debt,  the  law  presumes  (1)  that  the 
principal  asked  him  to  pay  it,and  (2)  that  he  went  on  to  promise 
indemnification.  So,  too,  in  a  case  where  the  plaintiff,  a  carrier, 
having  by  mistake  delivered  some  goods  to  the  defendant,  who 
wrongfully  appropriated  them,  was  obliged  to  pay  damages  to 
the  proper  consignee,  it  was  held  that  he  could  recover  the 
amount  against  the  appropriator  (p).  The  receipt  of  the  goods 
by  the  defendant  must  be  considered  to  have  been  equivalent  to 

0)  Roscorla  v.  Thomas,  3  Q.  ford,  L.  J.  54  Q.  B.  305. 

B.  234.  (p)    Brown    v.    Hodgson,    4 
(o)  Pownal  v.  Ferrard,  6  B.  &  Taunt.  189. 

C.  439  ;  Edmunds  v.  Walling- 


PAST    CONSIDERATION. 


Kindness  of 
promisee. 


Promisor 
taking  ben- 
efit. 


Continuing 
considera- 
tion. 


his  saying,  "  If  you  (the  carrier)  pay  the  true  owner  (as  you  may 
be  compelled  to  do)  for  the  goods,  I  will  reimburse  you  "  (q). 

As  to  when  a  surety  is  justified  in  resisting  payment  on  be- 
half of  the  debtor,  the  question  seems  to  be,  What  would  a  reason- 
able man  have  done  under  similar  circumstances  in  a  cause  entirely  his 
own  ?  Would  he  have  defended  the  action  or  not  ?  (>•)  "  No  per- 
son," said  Lord  Denman  once,  "  has  a  right  to  inflame  his  own 
account  agafhst  another  by  incurring  additional  expense  in  the 
unrighteous  resistance  to  an  action  he  cannot  defend  "  (s). 

A  distinction  is  to  be  observed  between  compulsion  by  law  and 
compulsion  by  agreement.  If  it  was  merely  by  agreement  that 
the  defendant  was  bound  to  do  what  the  plaintiff  has  been  com- 
pelled to  do,  the  plaintiff  must  sue  him  on  the  special  agreement, 
and  not  on  implied  assumpsit.  Thus,  in  one  case,  a  tenant  by 
written  agreement  engaged  to  pay  certain  taxes  which  by  statute 
were  due  from  the  landlord.  The  tenant  made  default,  and  the 
landlord,  being  obliged  to  pay,  sued  him  for  the  amount  as 
money  paid  to  his  use.  But,  as  was  pointed  out  by  the  court, 
the  plaintiff's  payment  had  relieved  the  defendant  from  no  lia- 
bility but  what  arose  from  the  contract  between  them.  The 
taxes  remained  due  by  the  default  of  the  defendant,  and  this 
would  give  the  plaintiff  a  remedy  on  the  agreement,  but  the 
amount  was  paid  by  the  plaintiff  to  one  who  had  no  claim  upon 
the  defendant,  and  therefore  not  to  his  use  (t). 

2.  Where  the  promisee,  has  voluntarily  done  what  the  promisor  was 
legally  compellable  to  do,  and  the  latter  in  consideration  thereof  ex- 
pressly promises. 

Jones  owes  his  tailor  £50,  and  Brown,  with  the  good  nature 
for  which  he  is  proverbial,  pays  it  for  him,  whereupon  Jones 
promises  to  repay  him  the  money.  Here  it  must  be  noticed,  it 
is  only  the  request  that  is  implied  (u). 

3.  Where  the  promisor  had  adopted  the  benefit  of  the  consideration. 

Here,  too,  both  request  and  promise  are  presumed.  If  a  trades- 
man sends  me  a  quantity  of  things  which  I  did  not  order,  but 
have  no  objection  to  keep,  the  law  presumes  (1)  that  I  asked  him 
to  send  them,  and  (2)  that  I  promised  to  pay  for  them.  The 
maxim  omnis  ratihabitio  retrotrahitur  et  mandato  priori  sequiparatur 
applies  (a;). 

It  may  be  noticed  here  that  a  continuing  consideration,  that  is, 
one  executed  in  part  but  which  still  continues,  may  also  be  sufficient 
to  support  a  promise  ;  e.g.  where  the  defendant,  having  become 
a  tenant  of  the  plaintiff,  promised   the  plaintiff  that  he  would, 


(q)  See  per  cur.  in  Spencer  v.  (I)  Spencer  v.   Parry,  3  A.   & 

Parry,  infra.  E.  331. 

(r)   Tindall  v.  Bell,  11  M.  &  («)  Wing  v.  Milh'l  B.  &  Aid. 

W.  228.  104. 

(s)  Short  v.  Kallowav,  11  A.  (a;)  Bird  v.  Brown,  4  Ex.  798. 
&  E.  28. 


MORAL    CONSIDERATION. 

during  the  term  of  his  tenancy,  manage  the  farm  demised  to  him 
in  a  husband-like  manner  (y). 


Moral  Consideration  insufficient. 


BEAUMONT  v.  REEVE.  [3.] 

[8  Q.  B.  483  (1846).] 

In  consideration  of  cohabitation  during  the  preced- 
ing five  years,  a  man  promised  to  pay  his  late  mistress 
an  annuity  of  £60  a  year.  In  an  action  which  the  lady 
brought  for  arrears,  it  was  held  that  there  was  no  legal 
consideration  for  the  promise. 

The  student  must  clearly  understand  that  it  was  not  because 
the  contract  was  illegal  that  it  was  held  to  be  void,  but  simply  Contract  not 
because  there  was  no  consideration  for  Reeve's  promise;  so  that  if  lUega.l- 
the  contract  had  been  under  seal  (when  considerations  are  neces- 
sary) it  would  had  been  binding  on  him.  Future  cohabitation, 
however,  would  be  an  illegal  consideration,  and  would  vitiate 
even  a  contract  under  seal  (z). 

But  though  a  merely  moral  obligation  will  not  support  a  prom-  Moral  consid- 
ise,  a  moral  obligation  which  ivas  once  a  legal  one,  and  would  be  eration  when 
so  still  but  for  the  intervention  of  some  stature  or  positive  rule  of  sufficient, 
law,  will  (a).     A  promise,  for  instance,  to  pay  a  debt  barred  by 
the  Statute  of  Limitations  is  binding.     A  bankrupt,  however, 
who  has  obtained  his  discharge  cannot,  except  on  a  new  consid- 
eration (6),  make  a  binding  promise  to  pay  debts  from  which  the 
Bankruptcy  Acts  have  released  him. 

A  parent,  it  may  be  mentioned,  is  not  under  any  obligation,  Father's  lia- 
other  than  moral,  to  pay  debts  incurred  by  his  child  (c).     Very  bility. 
slight  circumstances,  however,  will  raise  a  presumption  of  au- 
thority.    "People  are  very   apt  to  imagine,"  said  Maule  J., 
once  (d),  "  that  a  son  stands  in  this  respect  upon  the  same  foot- 
ing as  a  wife.     But  this  is  not  so.     If  it  be  asked  '  Is  then  the 


(y)   Powley  v.   Walker,  5  T.  Adney,  3  B.  &  P.  249. 

R.  373,  and  Massey  v.  Goodall,  (6)  Jakeman  ?>.  Cook,  4  Ex. 

17  Q.  B.  310.  Div.  26,  distinguishing  Heather 

(z)  See   Pearce  v.    Brooks,  p.  v.  AVebb,  2  C.  P.  D.  1. 

119;  and  re  Vallance,  Val lance  (c)  Mortimore  v.  Wright,  6  M. 

v.   Blagden,  L.    R.    26   Ch.    D.  &  W.  482. 

353.  (rf)   Shelton  v.  Springett,  11 

(a)  See   note   to  Wennall   v.  C.  B.  452. 


8  MORAL  CONSIDERATION PROPOSALS. 

son  to  be  left  to  starve  ?  '  the  answer  is,  he  must  apply  to  the  parish, 
and  they  will  compel  the  father,  if  of  ability,  to  pay  for  his  son's 
support. ' ' 
Barristers.  -A-  barrister's  services  as  an  advocate  are  supposed  to  be  honor- 

ary, and  therefore  he  can  neither  bring  an  action  for  his  fees  nor 
make  an  express  contract  with  his  client  in  respect  of  them  (e). 
But  an  express  contract  will  be  good  when  the  strict  relation  of 
counsel  and  client  does  not  exist  between  the  contracting  parties, 
e.  g.,  when  a  barrister  acts  as  arbitrator  or  returning  officer  (/)  j 
and  possibly  an  express  contract  with  a  client  as  to  non-litigious 
business  would  be  upheld.  Conveyancers  and  special  pleaders 
may  sue  for  their  fees  ;  and  so  may  doctors  under  21  &  22  Vict. 
c.  90.  As  to  unqualified  persons  practising  medicine,  see  Davies 
v.  Makuna,  29  Ch.  D.  596. 


Proposal  may  be  retracted  before  Acceptance. 


[4.] 


COOKE  v.  OXLEY. 
[3  T.  R.  653  (1790).] 

Oxley  having  a  quantity  of  tobacco  on  hand  proposed 
to  Cooke  to  sell  him  266  hogsheads  of  it.  Cooke  liked 
the  looks  of  the  offer,  but  not  being  quite  able  to  make 
up  his  mind  on  the  subject,asked  to  be  allowed  till  four 
o'clock  to  decide  ;  and  Oxley  consented  to  this.  But 
after  Cooke  had  gone  away  to  think  it  over,  Oxley  al- 
tered his  mind  and  resolved  not  to  let  Cooke  have  his 
tobacco. 

This  was  an  action  by  Cooke  for  non  delivery  of  the 
tobacco  :  but  he  did  not  succeed,  because  it  was  held 
that,  as  the  agreement  was  not  binding  on  Cooke  till 
four  o'clock,  there  was  no  consideration  for  Oxley's 
promise,  which  therefore  could  be  retracted  with  impu- 
nity. 

It  is  lo  be  observed  that  if  Cooke  had  given  Oxley  sixpence  for 

P     d'dera         keeping  the  offer  open,  or  if  he  had  agreed  to  pay  a  higher  price 

tion  for  pro-    f°r  the  tobacco  in  consequence,  there  would  have  been  a  consid- 

posal.  eration  for  Oxley's  promise,  and  he  would  have  been  bound  by 

it.     The  case  was  followed  in  Routledge  v.  Grant  (g),  (where  it 

was  held  that  defendant  having  offered  to  buy  a  house  in  St. 

(e)  Kennedy  v.  Broun,  13  C.  (/)      Egan     v.     Kensington 

B.,  N.  S.,  677,  and  see  Robert-  Union,  3  Q.  B.  935,  n. 

son  v.  Macdonogh,  14  Cox  C.  C.  (g)  4  Bing.  653. 
469. 


PROPOSALS — MUTUALITY.  9 

James's  Street,  and  to  give  plaintiff  six  weeks  for  a  definite  an- 
swer, he  might  at  any  time  during  the' six  weeks,  and  before  it 
was  accepted,  withdraw  his  offer),  and  it  may  be  taken  to  be 
clear  law  that  a  mere  proposal  may  be  revoked  at  any  time  before  ac- 
ceptanee.     It  is  on  this  principle  that  at  an  auction  a  bidding  can  Biddings  at 
be  retracted  any  time  before  the  hammer  goes  down   (/*).     Till  auctions, 
then  there  has  been  no  acceptance  of  the  bidder's  proposal.    The 
revocation  of  a  proposal,  however,  to   be  effective,  must  be  com- 
municated to  the  other  party  before  acceptance.     Thus,  "an  offer  of  Contract  by 
a  contract  sent  by  letter  cannot  be  withdrawn  by  merely  posting  letter. 
a  subsequent  letter  which  does  not,  in  the  ordinary  course  of  the 
post,  arrive  until  after  the  first  letter  has  been  received,  and  an- 
swered "  (i).     In  such  a  case  the  contract  is  complete  the  moment 
the  letter  accepting  the  offer  is  posted,  even  though  it  never  reaches  its 
destination  (k).     As  to  the  acceptance  of  an  offer  sent  by  telegram, 
see  Quenerduaine  v.  Cole,  32  W.  C.  R.  185. 

An  action  can  be  maintained  for  a  reward  offered  in  an  adver-  Contract  bv 
tisement  by  any  person  who  has  fulfilled  the  conditions  therein  advertise- 
prescribed.     The  leading  case  on  the  subject  is  Williams  v.  Car-  ment. 
wardine  (I),  where  the  defendant  had  caused  a  handbill  to  be 
published  to  the  effect  that  whoever  would  give  such  information 
as  should  lead  to  the  discovery  and  conviction  of  the  murderer  of 
one  Walter  Carwardine  should  receive  a  reward  of  £20.     In  an 
action  by  a  woman  against  the  person  who  had  offered  the  re- 
ward, it  was  held  that  she  was  entitled  to  succeed,  although  the 
jury  expressly  found  that  she  had  not  been  induced  to  give  the 
information  by  the  offer  of  the  reward,  but  by  other  motives. 
"  There  was  a  contract,"  said  Parke,  J.,  "  with  any  person  who 
performed  the  condition  mentioned  in  the  advertisement." 


Importance  of  Mutuality. 

JORDAN  v.  NORTON. 
[4M.  &W.  161  (1838).] 

Farmer  Norton  wrote  to  Farmer  Jordan  offering  to 
buy  a  particular  mare  if  the  latter  would  warrant  her 
"sound  and  quiet  in  harness.''''     Farmer  Jordan  wrote 

(h)  Payne  v.  Cave,  3  T.   R.  {k)  Harris's  Case,  L.  R.  7  Ch. 

148,  and  see  Warlow  v.  Harri-  587,  and  Dunlop  v.  Higgins,  1 

son,  1  E.  &  E.  295.  H.  L.  381. 

(i)  Byrne  v.  Van.  Tienhoven,  (I)  4  B.  &  Ad.  621.     See  also 

5  C.  P.  D.  344,  and  Stevenson  Denton  v.  G.  N.  By.  Co.,  p.  60. 
v.  McLean,  5  Q.  B.  D. 


[5.] 


10 


MUTUALITY. 


back  warranting  her  "  sound  and  quiet  in  double  har- 
ness" but  saying  he  had  never  put  her  in  single  har- 
ness. The  mare  was  taken  to  Norton's  by  an  agent, 
who  exceeded  his  authority  (and  whose  act  was  imme- 
diately repudiated)  and  then  turned  out  to  be  unsound. 
This  was  Farmer  Jordan's  action  for  the  price  of  the 
mare,  and  the  real  question  was  whether  or  not  there 
was  a  complete  contract.  This  question  was  decided  in 
the  negative.  "  The  correspondence,"  said  Parke,  B., 
"amounts  altogether  merely  to  this:  that  the  defend- 
ant agrees  to  give  twenty  guineas  for  the  mare,  if  there 
is  a  warranty  of  her  being  sound  and  quiet  in  harness 
generally,  but  to  that  the  plaintiff  has  not  assented. 
The  parties  have  never  contracted  in  writing  ad  idem." 


"Good  "bar- 
ley and 
"fine"  bar- 
ley. 


Contract 
sometimes 

binding  on 
one  party 
only. 


It  takes  two  to  make  a  contract,  and  those  two  must  have 
agreeing  minds.  That  being  so,  an  offer  must  be  assented  to  in 
the  precise  terms  in  which  it  is  made.  Jordan  v.  Norton  is  an  excel- 
lent illustration  of  this.  So  is  Hutchison  v.  Bowker  (m),  where, 
it  having  been  shown  that  in  the  corn  trade  there  was  a  distinc- 
tion between  "good"  barley  and  "fine"  barley,  there  was  held 
to  be  no  binding  contract  between  a  person  who  offered  to  sell 
"  good  "  barley  and  one  who  wrote  back,  "  we  accept  your  offer, 
expecting  you  to  give  us  fine  barley  and  full  weight."  So,  too,  if 
there  is  an  offer  of  a  house,  and  the  answer  is,  "I  decide  to  take 
the  house,  if  you  and  my  agent,  Mr.  So  and  So,  can  agree  upon  the 
terms;  if  not,  write  to  me,"  there  is  no  final  agreement  (n).  But 
it  has  been  held  that  although  in  the  written  acceptance  of  a 
tender  there  may  be  an  intimation  that  a  more  formal  document 
will  be  afterwards  prepared,  yet  the  parties  may  be  bound  to  the 
terms  of  the  tender  and  acceptance  (o). 

The  contract  may  be  binding  on  one  party  but  not  on  the 
other;  e.g.  on  the  party  contracting  with  an  infant  but  not  on  the 
infant  himself  (p) ;  on  the  party  who  has  signed  a  contract  within 
the  Statute  of  Frauds  but  not  on  the  party  who  has  not  signed  (q). 
So,  a  person  whose  tender  to  supply  stores  to  a  railway  company 
"in  such  quantities  as  the  company's  storekeeper  might  order 


)  5M.&W.  535. 

Stanleys.  Dowdeswell,  L. 
R.  IOC.  P.  102;  and  see  Hussey 
v.  Home-Payne,  8  Ch.  Div.  670; 
Harvey  v.  Barnard's  Inn,  50  L. 
J.  Ch.  750;  and  Preston  v.  Luck, 
L.  R.  27  Ch.  D.  497. 


(o)  Lewis  v.  Brass,  3  Q.  B.  D. 
667,  distinguishing  Rossiter  v. 
Miller,  5  Ch.  D.  648. 

( p)  Holt  v.  Ward.  2  Strange, 
937. 

(q)  Laythoarp  v.  Brian t,  2 
Bing.  N.  C.  743. 


MUTUALITY.  11 

from  time  to  time,"  is  accepted  may  be  bound  to  supply  though 
the  company  are  not  bound  to  order  (r). 

Contracts,  it  is  to  be  remembered,  may  be  implied  as  well  as  ex-  implied  con- 
pressed.     An  implied  contract  is  one  which  the  law,  on  principles  tracts, 
of  reason  and  justice,  presumes.     If,  for  instance,  a  man  avails 

himself  of  the  benefit  of  services  done  for  him  without  his  author- 

« 

ity,  the  law  may  supply  the  formal  words  of  contract  and  require 
him  to  pay  an  adequate  compensation  (s). 

We  have  nothing  in  our  law  quite  corresponding  to  the  quasi-  Salvage. 
contracts  of  the  Roman  lawyers  {I).  Salvage,  however,  is  not  far 
off.  Salvage  is  the  compensation  which  owners  must  make  to 
those  who  by  skill, enterprise  and  risk  (u),  have  rescued  their  prop- 
erty from  impending  perils  of  the  sea,  or  from  the  power  of  an  ene- 
my (x).  The  Court  of  Admiralty  has  jurisdiction  over  all  claims 
to  salvage.  But  cases  below  a  certain  amount  and  of  inferior  im- 
portance may' be  tried  by  county  court  judges  or  justices  of  the 
peace  (y). 

Salvors  are  never  entitled  to  more  than  a  moiety,  and,  if  they  A  moiety, 
have  entered  into  an  agreement  with  the  owners  as  to  the  amount   . 
to  be  paid,  they  must  be  content  to  claim  under  that  agreement, 
which  will  generally  be  enforced,  although  a  hard  bargain  for  the 
rescued.     Passengers  and  crew  are  not  generally  entitled  to  sal- 
vage.    Nor  are  pilots.     Exceptional  circumstances  and  services,  Pilots  and 
however,  may  make  a  difference.      "In  order  to  entitle  a  pilot  to  passengers, 
salvage  reward,"  said  Brett,  L.  J.,  in  the  recent  case  of  Akerblom 
v.  Price  (z),  "he  must  not  only  shew  that  the  ship  was  in  some 
sense  in  distress,  but  that  she  was  in  such  distress  as  to  be  in  dan- 
ger of  being  lost,  and  such  as  to  call  upon  him  to  run  such  un- 
usual danger,  or  incur  such  unusual  responsibility,  or  exercise 
such  unusual  skill,  or  perform  such  an  unusual  kind  of  service,  as 
to  make  it  unfair  and  unjust  that  he  should  be  paid  otherwise 
than  upon  the  terms  of  salvage  reward." 

Wilful  or  criminal  misconduct  of  salvors  may  work  an  entire  Misconduct 
forfeiture  of  salvage  ;  and  mere  misconduct  not  criminal  (e.  g.,  of  salvors, 
violent  and  overbearing  conduct)  will  operate  to  induce  the  court 
to  diminish  the  amount  payable  (a). 

It  is  to  be  observed  that  to  found  an  action  for  salvage  it  is  es- 
sential that  something  more  than  human  lite  should  be  saved. 

(r)  G.  N.  Ry.  Co.  v.  Witham,  the  subject  are  (as  to  civil  sal- 

L.  R.  !)  C.  P.  16.  vage)  17  &  18  Vict,  c.   104  and 

(s)  See  Landless  v.  Wilson,  8  (as  to  military  salvage)  27  &28 

C.  of  S.  Cas.  289  (Sc.)  Vict.  c.  25   (The  Naval    Prize 

(I)  "Quasi  ex  contractu  teneri  Act,  1864). 
videntur,"   Just.    Inst.   Lib.  3,         (?/)  See,  as  to  jurisdiction  of 

Tit.  27.  justices,  the  recent  case  of  The 

(«)  See  Aitchison  v.  Lohre,  4  Mac,  51  L.  J.,  P.  D.  &  A.,  81. 
App.  Ca.  755.  (z)  7  Q.  B.  D.  135, 

(x)  The  principal  Statutes  on         (a)  The  Marie,  7  P.  D.  203. 


12  MUTUALITY — DEBT,    DEFAULT,    OR    MISCARRIAGE. 

If  no  property  is  saved,  there  can  be  no  action.  The  case  of  The 
Rempor  (b),  brings  this  point  out  very  clearly. 

In  a  most  meritorious  case  ol  salvage  where  a  steamship  which 
had  got  aground  on  the  shore  of  the  Red  Sea,  ninety-five  miles 
from  Suez,  in  such  a  position  that  without  help  she  must  before 
many  hours  had  elapsed  have  been  lost  with  all  hands  on  board 
her,  was  towed  off  the  shore  and  to  within  a  few  miles  of  Suez  by 
another  steamship,  the  court,  on  a  value  of  £62,000,  awarded  the 
salvors  £6,000  (c). 

In  The  Sunniside  (d),  it  was  held  that  in  an  action  of  salvage 
evidence  of  the  loss  of  earnings  by,  and  of  the  costs  of  repairing 
damage  done  to  the  salving  vessel  in  consequence  of  rendering 
salvage  services  is  admissible.  But  these  sums  are  to  be  regarded 
as  elements  for  consideration  in  estimating  the  amount  of  the 
salvage  award,  and  are  not  be  considered  as  fixed  amounts  to  be 
awarded  to  the  salvors. 

See  also  the  recent  cases  of  The  Livietta,  8  Prob.  Div.  24  ;  The 
Yan  Yean,  8  Prob.  Div.  147,  and  The  Cheerful  (where  the  rescu- 
ing vessel  had  done  a  great  deal  of  work,  but  not  much  good), 
"    11  P.  D.  3 


Debt,  Default,  or  Miscarriage. 


[6«]  BTTRKMIRE  v.  DARNELL. 

[6  Mod.  248  (1704).] 

"My  friend  Lightfinger  wants  a  horse;  will  you  lend 
him  yours  ?  "  said  Darnell,  meeting  Burkmire  one  day 
in  1700.  "Yes,"  replied  Burkmire,  "  if  you  will  be  re- 
sponsible for  his  letting  me  have  it  safely  back  again." 
"  Certainly  I  will,"  replied  Darnell  emphatically. 

On  the  faith  of  this  collateral  undertaking,  Burkmire 
lent  Lightfinger  the  horse.  It  was  not  returned;  so  he 
sued  Darnell  as  surety.  This,  however,  did  him  no  good, 
because  he  found  that  he  ought  to  have  taken  Darnell's 
promise  in  writing  in  accordance  with  the  4th  section 
of  the  Statute  of  Frauds  (e). 

(b)  8  Prob.  Div.  115.  (d)  8  P.  D.  137. 

(c)  The   Lancaster,    8   Prob.         (e)  29  Car.  2,  c.  3. 
Div.  65. 


DEBT,    DEFAULT,    OR    MISCARRIAGE.  13 

MOUNTSTEPHEN  «J!  LAKEMAN.  [7.] 

[L.  R.  5  Q.  B.  613,  and  7  H.  L.  17  (1870).] 

A  builder  was  employed  by  the  Brixham  Board  of 
Health  to  make  a  main  sewer  for  thein.  He  got  his 
WDrk  finished,  and  the  Board,  in  the  usual  peremptory 
manner  of  local  authorities,  gave  notice  to  the  neighbour- 
ing householders  that  they  must  connect  the  drains  of 
their  houses  with  the  main  sewer,  or  the  Board  would 
do  it  for  them  at  their  expense. 

The  householders  displayed  the  slackness  common  on 
such  occasions;  and  Mr.  Lakeman,  the  chairman  of  the 
Board,  happening  to  meet  the  builder  in  the  street  a  few 
days  afterwards,  the  following  conversation  took  place : — 
"Well,  Mountstephen,"  said  Lakeman,  "you've  done 
the  main  sewer  very  nicely  for  us;  would  you  have  any 
objection  to  making  the  connections  too  ?"  "  Certainly 
not,  Sir;  if  you  or  the  Board  will  order  the  work,  or  be- 
come responsible  for  the  payment."  "  Well  then"  said 
Lakeman,  "go  and  do  it;  I  ivill  see  you  are  paid" 

Mountstephen,  therefore,  made  the  connections,  the 
Board's  surveyor  superintending  the  progress  of  the 
work,  and  by  and  by  he  sent  in  his  account  to  the  Board, 
debiting  them  with  the  account.  The  Board,  however, 
refused  to  pay,  saying  they  had  not  authorized  the  work. 
Mountstephen,  therefore,  brought  an  action  against  Lake- 
man,  and  it  was  held  that  Lakemarts  icords  icere  evi- 
dence to  sustain  a  claim  against  him  personally,  and 
that  they  did  not  constitute  a  promise  to  pay  the  debt  of 
"  another." 


The  test  as  to  whether  or  not  any  undertaking  for  another  Who  is  pri- 
should  have  heen  in  writing,  is  this: — Does  that  other,  after  the  tin-  niarily  lia- 
dcrtaking  has  been  made  for  him,  remain  primarily  liable'/     If  (like         " 
the  man  who  went  off  with  the  horse)  he  does,  the  undertaking 
cannot  be  sued  on  unless  it  is  in  writing;  if  (like  the  Brixham 
Board)  he  does  not,  it  is  binding,  though  not  in  writing.     If  I  go 
with  you  to  a  tailor's,  and  say  to  the  tailor,  "  Make  this  gentle- 
man a  pair  of  trousers,  and  if  he  dosenH  pay  you,  I  will;"  in  this  case 
3  COMMON   LAW. 


14  DEBT,    DEFAULT,    OR    MISCARRIAGE. 

•  you  clearly  remain  primarily  liable,  and  I  cannot  be  successfully 
sued  as  your  surety,  because  my  promise  is  not  in  writing.  But 
supposing,  when  we  go  into  the  shop,  I  say,  '"  Make  this  gentle- 
man a  pair  of  trousers,  and  put  them  down  to  me,  "  here  you  are 
not  primarily  liable,  and  therefore  the  4th  section  of  the  Statute 
of  Frauds  does  not  require  my  promise  to  be  in  writing. 

Extinction  of      ^o,  t°°>  ^  t^ie  en~ect  0I"  the  undertaking  is  to  extinguish  another 
debt.  person's  debt,  so  that,  though  up  to  that  time  he  has  been  liable, 

he  remains  so  no  longer,  the  undertaking  is  binding,  though  not 
in  writing.  If,  for  instance,  under  the  old  debtor  laws,  when  the 
effect  of  a  creditor's  liberating  a  debtor,  whom  he  had  taken  in 
execution,  was  to  release  the  debt,  Weakraan  promised  to  pay  the 
amount  of  Hardup's  debt  to  Holdfast,  if  Holdfast  would  release 
him  from  arrest ;  this  promise  was  not  within  the  statute,  because  the 
debt  was  gone  by  the  discharge  of  the  debtor  out  of  custody,  and 
Weakman  remained  solely  liable  (/). 

So,  too,  if  goods  are  furnished  to  a  married  woman  under  a  con- 
tract not  binding  on  her  separate  estate  or  (not  being  necessaries) 
to  an  infant  at  the  defendant's  request,  the  defendant's  under- 
taking to  pay  for  them  is  not  collateral,  because  the  married 
woman  or  infant  is  not  primarily  liable  (g). 

Keat  r   Tern-      When  the  undertaking  has  been  by  word  of  mouth,  it  is  for  the 
ple  jury  to  say  whether  or  not  the  person  for  whose  benefit  the  promise 

has  been  made  is  primarily  liable:  and  this  is  a  question  of  fact 
which,  depending  as  it  does  on  all  the  circumstances  of  the  case, 
it  is  sometimes  extremely  difficult  to  decide.  On  this  point  a  case 
that  may  usefully  be  compared  with  Mount  Stephen  v.  Lakeman  is 
Keate  v.  Temple,  where  a  Portsmouth  tailor  tried  unsuccessfully 
to  make  a  lieutenant  in  the  navy  pay  for  a  quantity  of  coats  sup- 
plied to  his  crew,  the  defendant  having  said,  "I  will  see  you  paid 
at  the  pay -table"  (A).  Eyre,  C.J.,  in  delivering  the  judgment  of 
thecourt,  said,  "There  is  one  consideration,  independent  of  every- 
thing else,  which,  weighs  so  strongly  with  me.  that  I  should  wish 
this  evidence  to  be  once  more  submitted  to  a  jury.  The  sum  re- 
covered is  £576  Is.  8d.,  and  this  against  a  lieutenant  in  the  navy: 
a  sum  so  large  that  it  goes  a  great  way  towards  satisfying  my 
mind  that  it  never  could  have  been  in  the  contemplation  of  the 
defendant  to  make  himselt  liable,  or  of  the  plaintiff  to  furnish 
the  goods  on  his  credit  to  so  large  an  amount  .  .  .  From  the 
nature  of  the  case  it  is  apparent  that  the  men  were  to  pay  in  the 
first  instance.  .  .  .  The  question  is,  whether  the  plain- 
tiff did  not  in  fact  rely  on  the  power  of  the  officer  over 
the  fund,  out  of  which  the  men's  wages  were  to  be  paid,  and  did 

(/)  Goodman  v.  Chase,  1  B.         (g)   Harris    v.    Huntback,    1 
&  Aid,   297  :   and   see   Bird   v.     Bun.  373. 
Gammon,  3  Bing.  X.  C.  883.  {h)  1  Bos.  &  P.  158. 


DEBT,    DEFAULT,    OR   MISCARRIAGE.  15 

not  prefer  giving  credit  to  that  fund  rather  than  to  the  lieutenant,  who, 
if  we  are  to  judge  of  him  by  others  in  the  same  situation,  was  not 
likely  to  be  able  to  raise  so  large  a  sum." 

It  has  been  held  that  the  undertaking  of  a  del  credere  agent,  j)ei  crc^ere 
who  guarantees  the  purchaser's  solvency,  is  not  within  the  statute,  agent, 
though  the  undertaking  may  result  in  a  liability  to  pay  the  debt 
of  another,  that  is  not  the  immediate  object  for  which  the  con- 
sideration is  given  (i) 

The  undertaking,  to  be  within  the  statute,  must  be  given  to  the  Promise  to 
creditor.     The  leading  case  on  this  subject  is  Eastwood  v.  Kenyon  debtor  not 
(k)  where  the  defendant  promised  the  plaintiff  to  see  to  the  set-  ^1711,n 
tlement  of  a  debt  which  the  latter  owed  to  a  third  person.     The 
promise  was  held  to  be  binding,  thought  not  in  writing.     So,  in 
another  case,  a  man  promised  a  bailiff,  that,  if  he  would  not  ar- 
rest a  relati  ve  of  the  former's  for  non-payment  of  a  judgment  debt, 
he  would  pay  the  money  himself.     This  promise,  also,  was  held 
not  to  require  writing  because  not  made  to  the  original  creditor(Z). 

Before  a  guaranty  can  become  binding  on  the  guarantor  it  must  Guaranty 
be  accepted  by  the  person  to  whom  it  is  offered.     A  man  once  must  ®e 
wrote  to  some  publishers  at  Derby  the  following  letter: — 

"  Doncaster,  July  5Ui,  1833. 

"Gentlemen, 

"  Mr.  France  informs  me  that  you  are  about  publishing 
an  arithmetic  for  him  and  another  person,  and  I  have  no  objection  to 
being  answerable  as  far  as  £50.  For  my  reference,  apply  to  3Iessrs. 
Brooke  &  Co.,  of  this  place. 

"  I  am,  Gentlemen,  your  most  obedient  servant, 

uGeo.  Tinkler, 
"  Witness  to  Mr.  Tinkler, 

' '  J.  Brooke. 
'  To  Messrs.  Mozley  &  Son,  Derby.'''' 

Mozley  &  Son  vouchsafed  no  reply  to  this  letter,  but  proceed- 
ed to  publish  the  arithmetic.  It  was  held  in  an  action  which 
they  afterwards  brought  against  Tinkler,  that  they  could  not 
treat  his  letter  as  a  guaranty,  because  they  had  never  accepted  it  (m). 

It  is  to  be  observed  that  the  words  of  the  statute  ("debt,  de-  Torts. 
fault  or  miscarriage")  do  not  refer  exclusively  to  contracts.  Accord- 
ingly, if  my  friend  Jones  wrongfully  takes  Brown's  horse  and  in- 
jures it,  and  I  then  promise  Brown  to  pay  the  damage  if  he  will, 
not  take  proceedings  against  Jones,  I  am  not  bound  unless  I 
promise  in  writing  (n). 

(i)  Couturier  v.  Hastie,  8  Ex.  v.  Cresswell,  10  Ad.  &  E.   453. 

56.  (m)  Mozley  v.  Tinkler,   1  C. 

(k)  11  Ad.  &  E.  438.  M.  &  R.  692;  and  see  M'lver  v. 

(I)  Reader  v.  Kingham,  13  C.  Richardson,  1  M.  &  S.  557. 

B.  N.  S.  344;  and  see  Thomas  v.  (n)  Kirkham  v.  Marter,  2  B. 

Cook,  8  B.  &  C.  728;  butsee  also  &  Aid.  613. 
the  doubtful  decision  of  Green 


16 


THE    MBMORANDUM    OR   NOTE    IN    WRITING. 


TJie  Memorandum  or  Note  in  Writing. 


[8.] 


Considera- 
tion need 
not  appear. 


The  memo- 
randum or 
note  in 
writing. 


WAIN  v.  WARLTERS. 
[5  East,  10  (1804).] 

Mr.  Warlters  was  decidedly  a  fortunate  litigant.  He 
had  a  friend  named  Hall,  who  became  indebted  to  Messrs. 
Wain  &  Co.  to  the  extent  of  £56,  and  with  no  particular 
means  of  payment.  To  extricate  this  friend  from  his 
difficulties  Warlters  sat  down  and  wrote  out  the  following 
collateral  security: — 

"Messrs.  tVain  &  Co., 

"  I  will  engage  to  pay  you  by  half -past  four  this 
day  £56  and  expenses  on  bill  that  amount  on  Hall. 
(Signed)  Johnathan  Warlters. 

"No.  2,  Cornhill,  April  30th,  1803:' 

Hall,  of  course,  did  not  pay  the  money.  So  Wain  & 
Co.  sued  Warlters  on  his  guaranty.  But  the  document 
was  held  to  be  mere  waste  paper,  as  no  consideration  for 
Warlters  promise  to  pay  the  £56  zvas  expressed  in  it. 

The  Statute  of  Frauds  requires  that  "  the  agreement  "  shall  be 
in  writing;  and  obviously  the  consideration  is  as  much  a  part  of  the 
agreement  as  the  promise.  But  though  Wain  v.  Warlters  is  there- 
fore a  perfectly  correct  interpretation  of  the  statute,  the  law  on 
the  subject  (so  far  as  regards  guaranties)  has  been  changed  by  the 
Mercantile  Law  Amendment  Act  of  1857  (o).  Guarantors  were 
always  wriggling  out  of  their  engagements  (as  Warlters  did)  by 
technical  defences,  and,  to  put  a  stop  to  such  dishonesty,  it  was 
enacted  that,  provided  a  consideration  did  in  fact  exist,  it  need  not 
be  put  into  the  document,  but  might  be  proved  by  oral  evidence. 
The  promise,  however,  must  still  be  in  writing  just  as  much  as 
before  (p). 

Wain  v.  Warlters  is  generally  considered  the  leading  case  on 
the  "memorandum  or  note  in  writing"  spoken  of  in  the  Statute  of 
Frauds.     It  is  necessary  that  this  memorandum  should  have  been 


o)  19  &  20  Vict.  c.   97,  s.   3. 

p)  Holmes  v.  Mitchell,  7  C.  B.  N.  S.  361. 


THE    MEMORANDUM    OR   NOTE    IN    WRITING.  17 

made  before  the  commencement  of  the  action  (q).     It  need  not  be  Before  action 
very  precise  in  its  terms,  the  principle  being  that  it  is  just  such  a 
memorandum  as  merchants  in  the  hurry  of  business  might  be  supposed 
to  make.     It  is  necessary,  however,  that  the  names  of  both  parties,  Name  or  de- 
or,  at  all  events,  a  clear  description  of  them  should  appear  (r)  scription. 
The  terms  also  must  be  stated,  e.g.,  the  price,  if  settled  (s).     The 
subject  matter  of  a  contract  of  sale  need  not  be  described  very  pre-  Terms. 
cisely,  parol  evidence  being  admissible  for  the  purpose  of  identi-  Subject  mat- 
fication.     Thus,  "the  property  in  Cable  Street"  (t),  "the  house  in  ^er- 
Newport"  (u),   and  "the  land  bought  of  Mr.  Peters"  (a;),  have 
been  held  to  be  sufficient  descriptions.     A  memorandum  may  be 
sufficient  although  addressed  to  a  third  party  (y),  and  even  though 
repudiating  a  contract  (z). 

The  signature  may  come  in  any  part  of  the  document,  even  at  Signature, 
the  top,  as  "/,  James  Crockford,  agree  to  sell"  (a).  But  it  must 
govern  every  part  of  the  instrument  (b).  It  may  be  by  initkils 
(probably)  or  mark  (even  though  the  person  can  write  (c),  and  it 
may  be  printed  or  stamped  (d).  But  there  must  be  something  in 
the  nature  of  a  signature.  A  letter  beginning  "My  dear  Robert" 
and  ending  with  the  words,  uDo  me  the  justice  to  believe  me  the  most 
affectionate  of  mothers,"  without  the  writer's  name  appearing  in 
it,  was  held  insufficient  (e).  "It  is  not  enough,"  said  the  court, 
"that  the  party  may  be  identified.  He  is  required  to  sign.  And 
after  you  have  completely  identified,  still  the  question  remains, 
whether  he  has  signed  or  not."  A  telegram  is  a  sufficient  (/) 
memorandum.  The  signature  required  is  that  of  "the  party  to 
be  charged"  only,  so  that  the  party  who  has  not  signed,  and  would 
not  be  bound  himself,  can  enforce  the  contract  against  the  party 
who  has  signed  (g).  A  signed  proposal  accepted  verbally  will 
satisfy  the  statute  (h).  The  memorandum  need  not  be  signed  by  Signature  by 
the  party  to  be  charged  himself;  it  may  be  signed  by  *  'some  other  agent, 
person  thereunto  by  him  lawfully  authorised."     This  authority 

(q)  Bill  v.  Bament,  9M.&W.  (z)  Bailey  v.  Sweeting,  9  C.  B. , 

36.  N.  S.  857,  and  Elliott  v.  Dean, 

(r)  Vandenbergh  v.  Spooner,  1  C.  &  E.  283. 

L.R.  1  Ex.  316;  Salev.  Lambert,  (a)  Knight   v.   Crockford,     1 

L.  R.  18  Eq.  1,  and  Donnison  v.  Esp.  190. 

People's  Cafe  Co.,  W.  N.  July  (b)  Caton  v.  Caton,  L.  R.  211. 

9th,  1881.  L.  127. 

(s)  Elmore  v.  Kingscote,  5  B.  (c)  Baker  v.  Dening,  8  Ad.  & 

&  C.  583,  and  Acebal  v.  Levy,  E.  94. 

10  Bing.  376;  but  see  Hoadley  (d)  Saunderson  v.  Jackson,  2 

v.  McLaine,  10  Bing.  482.  B.  &  P.  238. 

(I)  Bleakelyu.  Smith,  11  Sim.  (e)  Selby  v.  Selby,  3  Mer.  2. 

150.  (f)  Godwin  v.  Francis,  L.  R. 

(u)  Owen  v.  Thomas,  3  M.  &  5  C.  P.  295. 

K.  353.  (g)  Laythoarp  v.    Bryant,    2 

(x)  Rose  v.  Cunynghame,   11  Bing.  N.  C.  735. 

Ves.  550.  (h)  Reuss  v.  Picksley,  L.  R.  1 

(y)  Gibson  v.  Holland,  L.  R.  Ex.  342. 
1  C.  P.  1. 


18 


THE    MEMORANDUM    OR   NOTE    IN    WRITING, 


Bought  and 
sold  notes. 


Different 
documents. 

Difference  in 
wording  be- 
tween 4th 
and  17th  sec- 
tionsv 


may  be  conferred  without  writing.  But  one  of  the  contracting 
parties  cannot  be  the  other's  agent  for  the  purpose  of  signing  (i); 
and  for  this  reason  an  auctioneer  cannot  successfully  sue  on  a 
contract  which  he  has  signed  as  agent  (k),  and  although  under 
ordinary  circumstances,  the  auctioneer's  clerk  is  not  the  pur- 
chaser's agent,  yet  there  may  exist  special  circumstances  from 
which  the  clerk's  authority  to  sign  may  be  inferred  so  as  to  enti- 
tle the  auctioneer  to  sue  (I) . 

Many  contracts  are  made  through  brokers,  and  when  a  broker 
is  the  agent  of  both  parties,  his  signature  binds  them.  A  broker — 
according  to  the  general  practice — first  makes  an  entry  of  the  con- 
tract in  his  book  and  signs  it,  and  then  sends  a  copy  to  each  party, 
the  "bought  note"  to  the  buyer  and  the  "sold  note"  to  the  seller; 
and  these  notes,  if  they  agree,  constitute  a  sufficient  memoran- 
dum to  satisfy  the  statute  (m).  If  they  do  not  agree,  but  vary 
materially,  they  do  not  constitute  a  binding  contract  (»).  If 
there  are  no  bought  and  sold  notes,  or  if  they  disagree,  it  seems 
that  recourse  may  be  had  to  the  entry  in  the  broker's  book  (o). 

The  terms  of  a  contract,  it  is  to  be  observed,  need  not  all  appear 
in  the  same  document.  But  the  connection  between  various 
documents  cannot  be  proved  by  oral  evidence  (p). 

The  student  should  notice  a  difference  in  the  wording  between 
the  4th  and  the  17th  sections.  The  4th  says  merely,  "no  action 
shall  be  brought,"  while  the  17th  declares  that  no  contract  within 
it  shall  be  "allowed  to  be  good."  The  4th  section,  therefore,  refers 
only  to  the  procedure,  and  does  not  affect  the  intrinsic  validity  of 
the  contract  (q). 

See  also  Goodall  v.  Harding,  52  L.  T.  126,  and  Phelan  v.  Led- 
castle,  15  L.  R.,  Ir.  169. 


Alteration  of  Terms  between  creditor  and  debtor 
releases  Surety. 


[9.]  WHITCHER  v.  HALL. 

[5  B.  &  C.  269  (1826). 
Whitcher  agreed  to  let  Joseph  Hall  have  30  cows  for 
milking  at  £7  10s.  each  per  annum,  and  James  Hall  be- 
came surety  for  the  due  payment  of  the  money.     By  and 

C.  436. 

(o)  Sievewright  v.  Archibald, 
17  Q.  B.  124. 

(p)  See  Boydell  v.  Drummond, 
p.  32. 

(q)  Leroux  v.  Brown,  12  C.  B. 
801,  and  see  Williams  r.  Wheel- 
er, 8  C.  B..  N.  S.,  299,  and 
Britain  v.  Rossiter,  40  L.  T.  N. 
S.  240. 


(i)  Sharman  v.  Brandt,  L.  R. 
6  Q.  B.  720. 

(k)  Farebrother  v.  Simmons, 
5  B.  &  Aid.  333. 

(?)  Bird  v.  Boulter,  4  B.  &  Ad. 
443.  Peirce  v.  Corf,  L.  R.  9  Q. 
B.  at  p.  215. 

(?ra)  Rucker  v.  Cammeyer,  1 
Esn.  105. 

(n)  Grant  ».  Fletcher,  5  B.  & 


ALTERATION  OF  TERMS  RELEASES  SURETY.  19 

by  some  of  the  cows  died,  and  the  terms  of  the  letting 
were  changed  so  that  Joseph  was  to  have  the  milking  of 
28  cows  during  one  part  of  the  year  and  of  32  during  the 
other.  James  was  not  consulted  on  the  subject ;  and, 
indeed,  it  is  difficult  to  see  that  the  alteration  in  any  way 
prejudiced  him.  But  although  there  was  thus  no  sub- 
stantial alteration  of  the  original  terms,  yet  the  court 
considered  that  an  alteration  was  an  alteration,  and 
that  James  Hall  was  thereby  released  from  his  surety- 
ship. 

It  may  be  added  that  from  this  opinion  Mr.  Justice 
Littledale  dissented,  citing  the  maxim  de  minimis  non 
curat  lex,  by  which  he  meant  that  the  alterations  were  so 
trilling  as  to  be  not  worth  considering. 

The  man  who  is  kind  enough  to  become  surety  for  a  friend  un- 
dertakes a  very  thankless  office  ;  and  the  law  is  jealously  anxious 
to  shield  him  against  fraud  and  imposition.  Wkitcher  v.  Hall 
well  illustrates  the  rule  that  any  alteration  of  the  terms  of  the 
original  agreement  by  the  creditor  and  the  debtor  behind  the 
surety's  back,  will  exonerate  the  surety,  unless  the  rights  against 
him  are  expressly  reserved  (r). 

The  law  on  the  subject  was  lately  summed  up  by  Cotton,  L.J., 
as  follows  : — 

"The  true  rule,  in  my  opinion,  is  that  if  there  is  any  agreement  True  rule 
between  the  principals  with  reference  to  the  contract  guaranteed,  stated  by 
surety  ought  to  be  consulted,  and  that  if  he  has  not  consented  to  Cotton,  L.J. 
the  alteration,  although  in  cases  where  it  is  without  inquiry  evi- 
dent that  the  alteration  is  unsubstantial,  or  that  it  cannot  be  other- 
wise than  beneficial  to  the  surety,  the  surety  may  not  be  dis- 
charged ;  yet  that  if  it  is  not  self-evident  that  the  alteration  is  unsub- 
stantial, or  one  which  cannot  be  prejudicial  to  the  surety,  the  court  will 
not,  in  an  action  against  the  surety,  go  into  an  enquiry  as  to  the 
effect  of  the  alteration,  or  allow  the  question  whether  the  surety 
is  discharged  or  not  to  be  determined  by  the  finding  of  a  jury  as 
to  the  materiality  of  the  alteration,  or  on  the  question  whether 
it  is  to  the  prejudice  of  the  surety,  but  will  hold  that  in  such  a 
case,  the  surety  himself  must  be  the  sole  judge  whether  or  not  he  will 
consent  to  remain  liable  notwithstanding  the  alteration,  and  that 
if  he  has  not  so  consented  he  will  be  discharged  (s). 


(r)  Kearsley  r.  Cole,  16  M  &         (s)  Holme  v.  Brunskill,  3  Q. 
W.  128,  and  Price  v.  Barker,  24     B.  D.  495. 
L.  J.  Q.  B.  130. 


20 


ALTERATION  OF  TERMS  RELEASES  SURETY. 


Misrepresen- 
tation ot  con- 
cealment. 


Giving  time, 


Altering  the  terms  is  not  the  only  way  in  which  the  surety 
becomes  a  free  man  once  more.  He  is  always  discharged  in  the 
following  cases : 

(1)  If  there  has  been  a  fraudulent  misrepresentation  to,  or  conceal- 
ment from,  him  (t). 

But  the  creditor  is  not  bound  to  communicate  every  circumstance 
calculated  to  influence  the  discretion  of  the  surety  in  entering  into 
the  contract ;  what  he  must  disclose  is  simply  any  arrangement  be- 
tween himself  and  the  debtor  which  would  make  the  surety's 
position  different  from  what  he  would  reasonably  expect  (w). 
"The  plaintiff  and  defendant,"  said  Holroyd,  J.,  in  the  case  last 
referred  to,  "  icerc  not  on  equal  terms.  The  former  with  the  knowl- 
edge of  a  lact  which  necessarily  must  have  the  effect  of  increas- 
ing the  responsibility  of  the  surety,  without  communicating  that 
fact  to  him,  suffers  him  to  give  the  guarantee.  .That  was  a  fraud 
upon  the  defendant,  and  vitiates  the  contract."  Moreover 
as  was  said  by  the  Lord  Chancellor,  in  Owen  r.  Homan  (x) 
(where, the  surety  was  an  infirm  old  married  woman,  living  apart 
from  her  husband,  and  the  aunt  of  the  debtor),  "  without  saying 
that  in  every  case  a  creditor  is  bound  to  inquire  under  what  cir- 
cumstances his  debtor  has  obtained  the  concurrence  of  a  surety, 
it  may  safely  be  stated  that  if  the  dealings  are  such  as  fairly  to 
lead  a  reasonable  man  to  believe  that  fraud  must  have  been  used 
in  order  to  obtain  such  concurrence,  he  is  hound  to  make  enquiry, 
and  cannot  shelter  himself  under  the  plea  that  he  was  not  called 
on  to  ask,  and  did  not  ask,  any  questions  on  the  subject." 

(2)  If  the  creditor  enters  into  a  binding  agreement  with  the  dtbtorto 
give  him  time,  unless  by  such  agreement  the  creditor  reserves  his  rights 
against  the  surety  (y). 

The  reason  why  the  surety  is  discharged  in  this  case  is  that  the 
creditor  by  givingtime  to  thedebtor  has,  for  the  time  at  least,  put  it 
out  of  the  power  of  the  surety  to  consider  whether  he  will  have 
recourse  to  his  remedy  against  the  principal  debtor  or  not,  and 
because  the  surety  cannot  in  fact  have  the  same  remedy  against 
the  principal  as  he  would  have  had  under  the  original  contract. 

Mere  forbcarence  or  laches,  however,  will  not  discharge  the 
surety  (z).  Nor  will  a  contract  with  a  stranger  to  give  time  to  the 
principal  debtoi;affect  the  right  against  the  surety  (a). 


(t)  Lee  v.  Jones.  14  C.  B.  N. 
S.  386,  and  Phillips  v.  Foxhall, 
L.  R.  7  Q.  B.  666. 

(i<)  Hamilton  v.  Watson,  12 
CI.  &  Fin.  109,  and  Pidcock  v. 
Bishop,  3  B.  &  C.  605;  and  see 
Byrne  v.  Muzio,  7  L.  R.  Ir.  396. 

(x)  4  H.  L.  C.  A.  997. 

(y)  Bees  v.  Berrington,  2  Ves. 
jun.  540,  and  Croydon  Gas  Co. 
v.  Dickinson,  1  C.  P.   D.  707; 


but  see  York  Banking  Co.  i\ 
Bainbridge.  43  L.  T.,  N.  S.  733. 

(z)  Orrne  v.  Young,  1  Holt,  84, 
and  Goring  r.  Edmunds,  (i  Bing. 
94;  Oriental  Financial  Corpora- 
tion v.  Ore  rend  &  Co.,  L.  R.  7 
Ch.  Ap.  at  p.  150. 

(a)  Lyon  v.  Holt,  5  M.  &  W. 
250,  and  Eraser  v.  Jordan,  8  E. 
&  B.  303. 


ALTERATION  OF  TERMS  RELEASES  SURETY.  21 

"Where  two  qr  more  sureties  contract  severally,  the  creditor 
does  not  break  the  contract  with  one  of  them  by  releasing  the 
other.  The  contract  remaining  entire,  the  surety  in  order  to  es- 
cape liability  must  show  an  existing  right  to  contribution  from 
his  co-surety  which  has  been  taken  away  or  injuriously  affected 
by  his  release  ''  (b). 

(3. )  If  the  principal  debt  is  released  or  satisfied. 

But  it  may  be  mentioned  here  that  when  several  persons  join  Debt  satis- 
together  in  a  bond  of  suretyship,  e.  g.,  in  the  sum  of  £50  each  for  ue(l- 
the  honesty  of  a  clerk,  they  are  separately  liable,  so  that  the  pay- 
ment of  £50  by  one  of  them  is  no  answer  to   an   action  on  the 
bond  against  one  of  the  others  (e). 

(4.)  If  the  creditor  omits  to  do  something  lohieh  was  the  surety1  s  Considera- 
consideration  for  entering  on  the  responsibility.  *lon  n,)t  Per" 

(5.)  If  the  person  guaranteed  does  something  distinctly  injurious  to 
....       ,    . .,  .  Surety's  m- 

Ihe  interest  of  the  surely ;  terest  prej  u- 

e  g.,  if  I  am  surety  for  the  honest  servicer  of  a  clerk,  and  his  diced. 
master  systematically  throws  temptations  in  his  way  (d).  But  the 
master's  mere  passive  inactivity  will  not  discharge  the  surety.     If, 
however,  he  finds  out  that  the  servant  has  been  guilty  of  dishon- 
esty he  must  inform  the  surety,  who  may  withdraw  (e). 

It  often  becomes  an  important  and  difficult  question  whethera  Continuing 
particular  guaranty  is  a  continuing  one  or  not  ;  that  is  to  say,  guaranties. 
whether  the  surety's  undertaking  is  to  be  confined  or  not  to  one  trans- 
action. The  question  is  to  be  answered  by  considering  the  sur- 
rounding circumstances,  and  getting  as  near  as  possible  to  the  in- 
tention of  the  parties,  the  presumption  being  that  it  is  a  continu- 
ing guaranty,  because  "if  a  party  meant  to  confine  his  liability 
to  a  single  dealing,  he  should  take  care  to  say  so"  (/).  A  man 
who  had  a  nephew  setting  up  as  a  butcher,  gave  a  cattle  dealer 
this  undertaking: — 

"  J,  John  Meadows,  of  Barwick,  in  the  county  of  Northampton,  Heffield  v. 
will  be  answerable  for  £50  sterling  that  William  York,  of  Stamford,  Meadows. 
butcher,  may  buy  of  Mr.  John  Ilejfield,  of  Donington.'''' 

The  young  butcher  made  payments  at  various  times  to  Mr.  Hef- 
field, amounting  to  over  £90,  but  he  afterwards  failed  to  meet  his 
engagements  ;  and  the  question  was  whether  anything  could  be 
got  out  of  Meadows  as  surety.  Meadows  strenuously  maintained 
that,  as  his  nephew  had  paid  £90,  and  £90  was  a  larger  sum  of 
mo.iey  than  £50, — the  amount  for  which  he  had  undertaken  to  be 
liable, — the  guaranty  was  at  an  end.  But  it  was  held  that,  as 
the  object  of  the  guaranty  plainly  was  to  keep  the  young  man  going 
as  a  butcher,  it  was  a  continuing  guaranty,  and  Meadows  must 

(b)  Ward  v.  National  Bank  of  (e)  Burgess  v.  Eve,  L.  R.  13 
New  Zealand,  8  App.  C'a.  755.  Eq.  450  ;  and  see  Guardians  of 

(c)  Armstrong  v.  Cahill,  6  L.  Mansfield  Union  v.  Wright,  9 
R.  Ir.  440.  Q.  B.  D.  683. 

(d)  Smith  v.  Bank  of  Scot-  (f)  Per  Lord  Ellenborough 
land,  1  Dow,  292.  in  Merle  v.  Wells,  2  Camp.  413. 


22 


ALTERATION  OF  TERMS  RELEASES  SURETY. 


Guaranties  to 
or  for  firm. 

Death  of 
surety. 


Transfer  of 
securities  to 
surety. 


Contribu- 
tion. 


Pay  (o)-  The  cases,  however,  run  pretty  close,  as  may  he  imag 
hied,  when  it  is  said  that  the  following  was  held  not  to  be  a  con 
tinuing  guaranty  : — 

"7  hereby  agree  to  be  answerable  for  the  payment  of  £50  for  T. 
Lcrigo,  in  case  T.  Lerigo  does  not  pay  for  the  gin  he  receives  from 
you"  (h). 

A  guaranty  given  to,  or  for,  a  firm  only  continues  binding  after 
a  change  in  its  constitution  when  it  appears  to  have  been  thfe 
clear  intention  that  it  should  so  continue  (t). 

The  death  of  the  surety  does  not  per  se  operate  as  a  revocation 
of  a  continuing  guaranty,  but  notice  to  the  creditor  determines  it 
as  to  future  advances  (k).  But  a  guaranty,  the  consideration  of 
which  is  given  once  for  all  (e.g.,  admission  as  an  underwriting 
member  at  Lloyd's),  cannot  be  determined  by  the  guarantor,  and 
does  not  cease  at  his  death  (I). 

A  surety  who  has  paid  his  friend's  debt  is  entitled  to  have  trans- 
ferred to  him  any  securities  which  the  creditor  may  have  held, 
notwithstanding  his  ignorance  of  their  existence,  or  their  having 
been  given  since  he  entered  on  the  suretysnij)  [m).  And  if  the 
creditor  has  so  dealt  with  the  security  that  on  payment  by  the 
surety  it  is  no  use  to  him,  he  is  discharged  to  the  extent  of  the 
security  (»). 

A  surety  is  also  entitled  to  call  on  his  co-sureties  (whether 
bound  by  the  same  instrument  or  not  [o)  for  contribution  ;  and  if 
there  are  three  co-sureties,  of  whom  one  has  become  insolvent,  the 
surety  who  has  been  compelled  to  pay  the  debt  may  come  upon 
the  remaining  solvent  surety  not  merely  for  an  aliquot  proportion 
of  the  money  paid,  but  for  a  moiety  (p).  Besides  being  entitled 
to  contributions  from  each  other,  sureties  are  also  entitled  to  the 
benefit  of  all  securities  which  any  one  of  them  may  have  taken  (q). 
But  it  is  to  be  borne  in  mind  that  a  surety  is  not  entitled  to  sue 
his  co-surety  for  contribution  unless  he  has  paid,  if  not  the  whole 
of  the  principal  debt,  at  all  events  more  than  his  share  of  it  (r). 

See  also  the  recent  cases  of  Lawes  v.  Maughan,  1  C.  &  E.  340  ; 
Carter  v.  White,  25  Ch.  D.  666  ;  Ashby  ».  Day,  54  L.  J.  Ch.  935; 
and  Oddy  v.  Hallett,  1  C.  &  E.  532. 


(g)  Hern  eld  v.  Meadows,  L. 
R.  4  C.  P.  595. 

(k)  Nicholson  v.  Paget, 'I.  C.  & 
M.  48. 

(t)  19  &  20  Vict.  c.  97,  s.  4, 
and  see  Backhouse  v.  Hall,  6  B. 
&  S.  507. 

(k)  Coulthart  v.  Clementson, 
5  Q.  B.  D.  42,  and  see  Harriss 
r.  Fawcett,  L.  R.  15  Eq.  311, 
and  Beckett  v.  Addyman,  51  L. 
J.  Q.  B.  597. 

(0  Lloyd's  v.  Harper,  16  Ch. 
Div.  290. 


(m)  19  &  20  Vict.  c.  97,  s.  5. 

(n)  Campbell  r.  Bothwell,  47 
L.  J.,  and  see  Rainbow  v.  Jug- 
gins, 49  L.  J.  Q.  B.  718. 

(o)  Bering  v.  Wincliel&ea,  1 
Cox,  318,  and  see  Ramskill  v. 
Edwards,  31  Ch.  Div.  100. 

(p)  36  &  37  Vict.  c.  66,  s.  25, 
sub-s.  11. 

(q)  Steel  v.  Dixon,  50  L.  J. 
Ch.  591. 

(r)  In  re  Snowden,  50  L.  J. 
Ch.  540,  and  see  Davies  v.  Hum- 
phreys, 6  M.  &  W.  153. 


INTERESTS    IN    OR    CONCERNING    LAND. 


23 


Interests  in  or  concerning  Lands. 


CROSBY  f.  WADSWORTE  [10.] 

[6  East,  602  (1805  j.] 

Farmer  "Wadsworth,  of  Claypole,  in  Lincolnshire,  had  a 
field  of  likely-looking  grass,  which  Crosby,  with  an  eye 
to  hay,  desired  to  purchase.  Meeting  casually  one  day 
in  June,  it  was  agreed  between  them  in  conversation 
that  Crosby  should  have  the  grass  for  20  guineas,  only 
he  was  to  have  the  trouble  of  mowing  and  making  it 
into  hay.  Soon  afterwards,  however,  Wadswortb  got  a 
better  offer  for  his  grass,  so  he  coolly  proceeded  to  break 
his  word  to  Crosby.  The  latter  brought  this  action  for 
breach  of  contract,  but  unfortunately  took  nothing  by 
that,  as  it  was  held  that  the  contract  was  one  which  had 
to  do  zcith  the  land,  and  therefore  should  have  been  in 
writing,  as  required  by  the  4th  section  of  the  Statute  of 
Frauds. 

The  case  that  is  always  contrasted  with  Crosby  v.  Wadsworth  is  Growing 
Parker  v.  Staniland  (s),  where  it  was  held  that  a  contract  for  the  potatoes, 
sale  of  growing  pola(ocsvcas7iota  contract  for  the  sale  of  any  interest 
in  or  concerning  land,  the  potatoes  being  regarded   as   chattels 
stored  in  a  warehouse. 

It  is  not  easy  to  extract  from  the  cases  a  clear  rule  for  deter-  Difficult v  <>f 
mining  when,  and  when  not.  a  sale  of  growing  crops  is  a  sale  of  laying   down 
an  "interest  in  or  concerning"  lands.     In  Benjamin's  "Sale  of  dear  rule. 
Personal  Property,"  however,  the  law  is  summarised  as  follows  (<) : 

"  Growing  crops,  if  FBTTCTUS  INDTTSTEIAXES,  are  chattels,  and 
an  agreement  for  the  sale  of  them,  whether  mature  or  immature, 
whether  the  property  in  them  is  transferred  before  or  after  sever- 
ance, is  not  an  agreement  for  the  sale  of  any  interest  in  land,  and 
is  not  governed  by  the  4th  section  of  the  Statute  of  Frauds.  Grow-  ^jf  t>  . 
ing  crops,  if  FBUCTUS  INDUSTBIALES,  are  part  of  the  soil  before  m[n's  ru'ie. 
severance,  and  an  agreement,  therefore,  vesting  an  interest  in  them 
in  the  purchaser  before  severance,  is  governed  by  the  4th  section; 
but  if  the  interest  is  not  to  be  vested  till  they  are  converted  into 
chattels  by  severance,  then  the  agreement  is  an  executory  agree- 


(s)  11  East,  362. 


(t)  3rd  ed.,  p.  115. 


24 


INTERESTS    IN    OR    CONCERNING    LAND. 


Agreements 
requiring  to 
be  in  writing. 


Agreements 
which  need 
not  be  in 
writing. 


ment  for  the  sale  of  goods,  wares  and  merchandise,  governed  by 
the  17th  and  not  by  the  1th  section  of  the  statute." 

For  cases  in  support  of  this  proposition  the  student  .should  refer 
(in  addition  to  the  leading  case  and  to  Parker  r.  Staniland)  t<j 
.Smith  v.  Surman  [ii)  (standing  timber  to  be  cut  by  the  seller — 
held  not  within  sec  4);  "Warwick  v.  Bruce  (.r),  and  Sainsbury  v. 
Matthews  (y)  (potatoes  to  be  dug  by  the  purchaser  when  ripe — 
held  not  within  sec.  4);  Washburn  v.  Burrows  (z)  (growing  grass 
to  be  cut  by  the  seller — held  not  within  sec.  4);  Evans  v.  Roberts(n) 
(potatoes  to  be  turned  up  by  the  seller — held  not  within  sec.  4); 
Rod  well  v.  Phillips  (b)  (growing  fruit — held  within  sec.  4);  and 
Marshall  v.  Green  (c)  (growing  timber  to  be  cut  by  the  purchaser 
— held  not  Avithin  sec.  4) 

As  to  things  other  than  growing  crops,  the  following  agree- 
ments have  been  held  to  "concern"  land  and  require  writing: — 

To  enable  a  person  to  take  water  from  a  well  <d): 

To  convey  an  equity  of  redemption  (n; 

To  let  or  take  furnished  lodgings  (/); 

To  surrender  a  tenancy,  and  try  and  get  the  landlord  to  accept 
the  other  contracting  party  as  tenant  (g) : 

To  sell  sheires  in  ei  mine  (/;);  and 

An  agreement  for  ei  lease,  or  for  the  sale  assignment,  or  transfer 
of  a  leasehold  estate  (i);  and 

A  grant  of  a  right  to  shoot  over  land,  and  take  away  a  part  of 
the  game  killed  (k). 

But  the  following  agreements  have  been  held  not  to  be  within 
sec.  4: — 

To  build  a  water-closet  for  a  tenant  (/); 

For  board  and  lodging  merely  (»i); 

As  to  the  cost  of  investigating  the  title  to  land  {n)\ 

To  sell  shares  in  railway,  canal,  dock,  banking,  insurance,  or 
gas  companies  (o); 

And  in  the  equity  leading  cases  of  Russell  v.  Russell  (p)  it  was 
held  that  an  equitable  mortgage  by  deposit  of  title-deeds  was  valid, 
notwithstanding  the  4th  section  of  the  Statute  of  Frauds. 


(u)  9B.  &C.-5G1. 
(a:)  2  M.  &  S.  205. 
(y)  4  M.  &  W.  343. 
(z)  1  Ex.  107. 
(a)  5B.  &C.  829. 
(/;)  0  M.  &  \Y.  r,02. 

(c)  1  C.  P.  D.  35. 

(d)  Tyler  v.  Bennett,  5  Ad.  & 
E.  377. 

(e)  Massey  v.  Johnson,  1  Ex. 
255. 

(/)  Inman  v.  Stamp,  1  Stark, 
12. 

(g)  Cocking  v.  Ward,  15  L. 
J.  C.  P.  245. 


(//)  Boycer.  Green,  Batty,  608. 

(i)  Poulteney  v.  Holmes,  Str. 
405. 

(k)  Webber  v.  Lee,  9  Q.  B.  D. 
315. 

(/)  Mann  v.  Nunn,  43  L.  J. 
C.  P.  211. 

(>»)  Wright  v.  Stavert,  2  E. 
&  E.  721. 

(n)  Jeakes  v. White,  6 Ex.  873. 

(o)  Bligh  r.  Brent,  2  Y.  &  C. 
268;  Bradley  v.  Holdsworth,  3 
M.  cS:  W.  422;  and  Duncuft  p. 
Albrecht,  12  Sim.  189. 

( p)  1  Bro.  C.  C.269. 


NOT   TO    BE    PERFORMED    WITIIIN   THE    YEAR.  25 


Not  to  be  performed  with  In  the  space  of  One  Year. 

PETER  v.  COMPTON.  [11.] 

[Skin.  353  (1690j.] 

"Peter,  my  boy,"  said  Compton,  festively,  "what  do 
you  say  to  this  ?  If  you  will  give  me  a  guinea  nowlivill 
give  you  1000  guineas  on  your  wedding  day.''''  "  Agreed," 
cried  Peter,  and  paid  down  the  guinea,  which  Compton 
pocketed,  thinking  it  good  business. 

Two  years  afterward  Peter  married,  and  claimed  the 
1000  guineas.  Compton  declined  to  pay,  because,  he 
said,  the  4th  section  of  the  Statute  of  Frauds  pro- 
vided that  an  "agreement  that  is  not  to  be  performed 
withiu  the  space  of  one  year  from  the  making  thereof" 
must  be  in  writiDg. 

It  was  held,  however,  that  the  stahrfe  only  applies  to 
agreements  which  are  in  their  terms  incapable  of  per- 
formance  within  the  year,  whereas  Peter  might  have  got 
married  the  very  next  day. 

If  you  were  to  engage  a  person  for  a  year's  service  from  next  Agreements 
Tuesday  fortnight,  the  agreement  between  yourself  and  the  ser-  incapable  of 
vant  would  clearly  be  one  which  by  its  terms  was  incapable  of  performance 
performance  within  the  year;  and  therefore  it  would  not  be  bind-         nn 
ing  unless  in  writing  (q).     A  general  hiring,  however,  which  is 
construed  to  be  for  a  year,  need  not  be  in  writing  (r). 

Supposing  the  agreement  to  be  in  its  terms  incapable  of  perform-  Condition    • 

ance  within  the  year,  it  must  still  be  in  writing,  though  there  is  a  which  may 

condition  which  may  put  an  end  to  it  within  the  year.  Thus  a  con-  Pu^  an  en"  to 

tract  with  a  coachmaker  to  hire  a  carriage  from  him  for  five  years  '  *?Te  .  *  n 

°  J  within   year, 

has  been  held  altogether  void,  because  not  in  writing,  although  it 

was  part  of  the  agreement  that  either  party  might  put  an  end  to  it 

at  a  moment'snotice  (.s).    On  thesame  principle,  a  contract  between 

a  solicitor  and  an  insurance  company  that  the  former  shall  be  the 

company's  solicitor  during  his  whole  professional  life  and  so  long  as 

(q)  Bracegirdle  v.  Heald,  1  B.         (r)  Beeston  v.  Collyer,  4  Bing. 
&  Aid.,  722;  and  see  Britain  v.     309. 

Rossiter,  11  Q.  B.  D.  123.  (s)  Birch  v.  Liverpool,  9  B.  & 

C.  392. 


26  NOT  TO  BE  PERFORMED  WITHIN  THE  YEAR. 

they  continue  a  company,  must  be  in  writing,  notwithstanding  the 
chance  of  its  terminating  by  death,  resignation,  or  otherwise  (t). 

On  the  other  hand,  a  promise  by  a  man  to  a  woman  he  had  co- 
habited with  to  pay  her  £300  a  year  so  long  as  she  should  maintain 
and  educate  their  seven  illegitimate  children,  has  been  held  not  with- 
in the  statute  (it). 

So  has  a  contract  for  valuable  consideration  to  leave  a  sum  of 
money  whenever  the  promisor  should  die  (x). 

The  question  in  all  these  cases  is,  Is  the  contract  prima  facie  in- 
capable of  performance  within  the  year? 
Donellan  v.         The  section  applies  only  to  contracts  which  are  not  to  be  per- 
Read.  formed  oneilhersidc  within  the  year;  so  thatPeter  v.  Compton  might 

have  been  decided  in  the  same  way  on  the  ground  that  one  of  the 
parties  was  wholly  to  execute  his  part  of  the  contract  within  the 
year.  The  leading  case  on  this  point  is  Donellan  v.  Read  (y),  an  ac- 
tion for  extra  rent  payable  in  pursuance  of  the  terms  of  a  verbal 
agreement  by  which  the  landlord  was  forthwith  to  do  some  repairs. 

See  also  Bevan  v.  Carr,  1  G.  &  E.  499,  and  Miles  v.  New  Zealand 
Alford  Estate  Co.,  54  L.  J.  Ch.  1035. 


Goods,  Wares,  or  Merchandises  for  the  price  of 
Ten  Pounds. 


[12.]  BALDEY  v.   PARKER. 

[2  B.  &  C.  37  (1823).] 

Mr.  Parker  went  one  day  into  a  linendraper's  shop,  and 
bargained  for  a  number  of  trifling  articles, a  separate  price 
being  agreed  on  for  each,  and  no  one  article  being  priced 
so  high  as  £10.  The  articles  that  Mr.  Parker  decided  to 
buy  he  marked  with  a  pencil,  or  assisted  in  cutting  from  a 
larger  bulk.  Then  he  went  home,  desiring  that  an  account 
of  the  whole  should  be  sent  after  him.  This  was  done, 
and  the  sum  Parker  was  asked  to  pay  was  £70,  minus 
5  per  cent,  discount  for  ready  money.  This  discount  he 
quarrelled  with,  not  considering  it  liberal  enough,  and, 

{t)  Eley  v.  Positive  Assurance  non,  4  Ex.  Div.  81. 

Co.,  1  Ex.  Div.  88.  (x)  Ridley  v.  Ridley,  34  L.  J. 

(w)  Knowlman  v. Bluett,  L.  R.  Ch.  462. 

9  Ex.  1;  and  see  Davy  v.  Shan-  (y)  3  B.  &  Ad.  899. 


THE    SEVENTEENTH    SECTION.  27 

when  the  goods  were  sent  to  him,  he  refused  to  accept 
them. 

This  was  an  action  by  the  linendraper  against  his  re- 
calcitrant customer,  and  the  main  question  was  whether 
the  contract  was  one  "  for  the  sale  of  goods,  wares,  or 
merchandises  for  the  price  of  £10  "  within  the  17th  sec- 
tiou  of  the  Statute  of  Frauds.  The  question  was  de- 
cided in  the  affirmative,  the  contract  having  been  an 
entire  one,  and  "  it  being  the  intention  of  that  statute," 
as  Holroyd,  J ,  said,  "  that,  where  the  contract,  either 
at  the  commencement  or  at  the  conclusion,  amounted  to, 
or  exceeded  the  value  of  £10,  it  should  not  bind  unless 
the  requisites  there  mentioned  were  complied  with." 
"  The  danger,"  he  added,  "  of  false  testimony  is  quite 
as  great  where  the  bargain  is  ultimately  of  the  value  of 
£10  as  if  it  had  been  originally  of  that  amount." 

"Where,  however,  at  an  auction  several  successive  lots  are  Lots  at 
knocked  down  to  the  same  person,  a  distinct  contract  arises  as  to  auction, 
each  lot  (z). 

But  it  has  been  held  that,  although  at  the  time  of  the  contract  it 
is  uncertain  whether  the  subject-matter  of  the  sale  will  be  worth 
£10  or  not  {e.g.,  suppose  the  sale  to  be  of  a  future  crop  of  turnip  Future  crop, 
seed,  which  may  or  may  not  turnout  a  success),  yet  if  that  figure 
is  ultimately  reached,  the  statute  applies  (a).     It  is  to  be  ob-  k  p.,:oe  >> 
served  that,  though  the  word  in  the  17th  section   is  "price,"  means  value. 
the  effect  of  section  7  of  Lord  Tenterden's  Act  (b),  which  is  to  be 
read  with  the  17th  section  of  the  Statute  of  Frauds,  as  if  incor- 
porated therein,  is  to  substitute  the  word  "  value  "  (c). 

The  words  of  the  17th  section,  "goods,  wares,  and  merchan-  Shares, 
dises, ' '  do  not  apply,  it  has  been  held,  to  shares,  stocks,  docu- 
ments of  title,  choses  in  action,  and  other  incorporeal  rights  and 
property  (d). 

In  the  leading  case  an  attempt  was  made  to  bring  the  pur- 
chaser withiu  the  other  part  of  the  17th  section  by  showing  that 
he  had  "accepted  and  actually  received  "  the  goods.  The  con- 
tinuance of  the  vendor's  lien,  however,  was  held  to  be  fatal  to 
such  a  contention. 


(z)    Emmerson   v.    Heelis,    2  (b)  9  Geo.  IV.  c.  14. 

Taunt.    38,    and    see    Rugg  v.  (c)  Harman  v.    Reeve,  18  C. 

Minnett,  11  East,  218.  B.  587. 

(a)  Watts  v.  Friend,  10  B.  &  (rf)  Bowlby  v.   Bell,  3  C.  B. 

C.  446.  284. 


28  THE    SEVENTEENTH    SECTION. 

Accept  and  actually  Receive. 


[13  ELMORE  v.  STONE. 

[1  Taunt.  458  (1809).] 

Elmore  was  a  livery  stable-keeper,  and  had  a  couple 
of  horses  for  sale,  for  which  he  wanted  £200.  Stone 
admired  the  horses,  but  not  the  price.  Finding,  how- 
ever, he  could  not  get  them  for  less,  he  sent  word  he 
would  take  the  horses,  "  but,  as  he  had  neither  servant 
nor  stable,  Mr.  Elmore  must  keep  them  at  livery  for 
him." 

In  consequence  of  this  message,  Elmore  removed  the 
horses  from  his  sale  stable  into  another  stable,  which 
he  called  his  livery  stable.  In  an  action  which  he 
brought  for  the  price,  the  question  was  whether  such 
removal  was  a  sufficient  constructive  delivery  to  take  the 
case  out  of  the  Statute  of  Frauds,  and  it  was  held  that 
it  was,  as  Elmore  from  that  time  held  the  horses,  not  as 
owner,  but  as  any  other  livery  stable  keeper  might  have 
done. 


TEMPEST  v.  FITZGERALD. 
[14.]  [3  B.  &  A.  680  (1820).] 

Mr.  Fitzgerald,  paying  a  visit  to  Mr.  Tempest,  took 
a  fancy  to  one  of  his  host's  horses,  and  finally  agreed 
to  buy  it  for  45  guineas.  He  could  not  do  with  the  an- 
imal just  then,  but  he  said  he  would  call  for  it  on  his 
way  to  Doncaster  races,  and  Tempest  agreed  to  take  care 
of  it  in  the  meantime.  Both  parties  understood  the 
transaction  to  be  a  ready-money  bargain.  Just  before 
the  races  Fitzgerald  returned  to  Tempest's  house,  gal- 
loped the  horse,  and  gave  various  directions  about  it, 
treated  it  in  every  way  as  his  own,  and  asked  his  host 
to  keep  it  a  week  longer,  saying  he  would  return  imme- 
diately after  the  races,  pay  the  45  guineas,  and  take  the 


THE    SEVENTEENTH    SECTION.  29 

horse  away.  Unfortunately,  during  the  Doncaster  race 
week,  the  horse  died,  and  mutual  recriminations  en- 
sued ;  Tempest  contending  that  the  loss  ought  to  fall 
on  Fitzgerald,  as  the  property  in  the  horse  had  passed 
to  him,  Fitzgerald  maintaining  the  opposite  view.  The 
latter  was  the  view  adopted  by  the  judges,  as  they  con- 
sidered there  had  been  no  such  receipt  as  would  satisfy 
the  Statute  of  Frauds. 

While  the  17th  section  of  the  Statute  of  Frauds  inculcates  on  Acceptance 
contracting  parties  the  importance  and  desirability  of  writing,  and  receipt, 
when  the  value  of  the  goods  sold  exceeds  £10,  it  at  the  same  time 
permits  them,  in  the  absence  of  writing,  to  bind  themselves  if 
certain  other  circumstances  are  present.     Writing,  for  instance,  is 
unnecessary  if  "  the  buyer  shall  accept  part  of  the  goods  so  sold, 
and  actually  receive  the  same. ' '  The  words  of  the  statute  have  been 
so  interpreted  that  they  are  satisfied  very  often  by  a  constructive 
acceptance.     In  Elmore  v.  Stone,  for  instance,  the  seller  changes  Constructive 
his  character,  and  becomes  a  bailee  for  the  purchaser,  losing,  of  acceptance, 
course,  his  right  of  lien.     Similarly,  if  a  man  sold  his  horse,  but 
asked  the  purchaser  if  he  would  be  kind  enough  to  let  him  keep 
it  a  few  days  longer,  and  the  purchaser  consented,  there  would  be 
a  sufficient  acceptance  (e).     So  there  was  held  to  be  evidence  of 
acceptance  in  a  case  where  the  defendant,  having  verbally  agreed 
to  buy  a  haystack  of  the  plaintiffs,  resold  part  of  it  to  a  third  per- 
son who  removed  it  (/). 

"  It  is  of  great  consequence,"  said  Lord  Kenyon,  C.  J.,  in  that 
case,  "to  preserve  unimpaired  the  several  provisions  of  the  Stat- 
ute of  Frauds,  ichich  is  one  of  the  wisest  laws  in  our  statute  book.  My 
opinion  will  not  infringe  upon  it ;  for  here  the  report  states  that 
the  question  was  specifically  left  to  the  jury  whether  or  not  there 
was  an  acceptance  of  the  hay  by  the  defendant,  and  they  have 
found  that  there  was,  which  puts  an  end  to  any  question  of  law. 
I  do  not  mean  to  disturb  the  settled  construction  of  the  statute, 
that  in  order  to  take  a  contract  for  the  sale  of  goods  of  this  value 
out  of  it,  there  must  either  be  a  part  delivery  of  the  things,  or  a 
part  payment  of  the  consideration,  or  the  agreement- must  be  re- 
duced to  writing  in  the  manner  therein  specified.  But  I  am  not 
satisfied  in  this  case  that  the  jury  have  not  done  rightly  in  find- 
ing the  fact  of  a  delivery.  Wlicre  goods  are  ponderous,  and  incapa- 
ble (as  here)  of  being  handed  over  from  one  to  another,  there  need  not 
be  an  actual  delivery ;  but  it  may  be  done  by  thatiohich  is  tantamount, 
such  as  the  delivery  of  the  key  of  a  warehouse  in  which  the  goods  are 


(e)  Marvin  v.  Wallis,  6  E  &         (/)  Chaplin  v.  Rogers,  1  East, 
B.  726.  192. 

4   COMMON   LAW. 


30 


THE    SEVENTEENTH    SECTION. 


Vendor's 
lein. 


Effect  of 
acceptance. 


Earnest  and 
part  pay- 
ment. 


lodged,  or  by  delivery  of  other  indicia  of  property. ' '  As  to  what 
amounts  to  an  acceptance  within  the  statute  see  further  the  re- 
cent case  of  Page  v.  Morgan,  15  Q.  B.  D.  228,  where  some  wheat 
was  refused  as  not  being  equal  to  sample,  and  Kibble  v.  Gough, 
38  L.  T.  N.S.  204,  was  followed. 

Tempest  v.  Fitzgerald  may  seem,  at  first  sight,  to  trench  rather 
closely  on  Elmore  v.  Stone ;  but  in  the  former  case  the  bargain  was 
for  ready  money,  and  the  vendor's  lien,  therefore,  would  continue 
till  the  price  was  paid  ;  and  there  can  be  no  acceptance  by  the  pur- 
chaser as  long  as  the  vendor's  lien  continues.  In  Elmore  v.  Stone, 
by  consenting  to  act  in  a  new  capacity,  the  vendor  relinquished 
his  lien. 

A  delivery  to  a  common  carrier,  it  may  be  mentioned,  is  gen- 
erally a  delivery  to  the  vendee  (g) . 

The  effect  of  the  acceptance  required  by  the  statute  is  not  to 
preclude  a  party  from  disputing  that  the  contract  has  been  prop- 
erly carried  out,  but  simply  to  prevent  him  from  objecting  that 
the  contract  is  not  in  writing  (h). 

Writing  is  also  unnecessary  if  the  buyer  gives  "  something  in 
earnest  to  bind  the  bargain  or  in  part  of  payment.'1'1  If  what  the 
buyer  gives  is  money,  it  presumably  forms  part  of  the  price  ;  other- 
wise it  is  in  the  nature  of  a  pledge.  There  must  bean  actual  trans- 
ference. Therefore  it  is  not  sufficient  for  the  buyer  to  draw  a  shil- 
ling across  the  hand  of  the  seller,  and  then  put  it  into  his  pocket 
again  (i)      Nor  will  the  buyer's  relinquishment  of  a  debt  do  (k). 


Goods  not  yet  in  Existence. 


[15.]  LEE  v.  GRIFFIN. 

[1  B.  &  S.  272  (1861).] 

This  was  an  action  against  an  executor  to  recover  the 
price  of  artificial  teeth  made  for  his  testatrix,  who  had 
died  before  they  were  ready.  The  price  of  the  teeth 
being  £21,  and  there  being  no  writing,  the  17th  section 
of  the  Statute  of  Frauds  prevented  the  dentist  from  re- 
covering for  goods  sold  and  delivered,  but  it  was  suggest- 
ed that  the  count  for  work,  labour  and  materials  might 


(g)  Dawes  v.  Peck.  8  T.  R. 
330,  and  Dunlop  v.  Lambert,  6 
CI.  &  Fin.  600. 

(ft)  Morton  v.  Tibbett,  15  Q. 
B.  428,  and  Grimoldby  v.  Wells, 


L.  R.  10  C.  P.  391. 

(■/)  Blenkinsop  v.  Clayton,  7 
Taunt.  597. 

(k)  Walker  v.  Nussey,  16  M. 
&  W.  302. 


LORD   TENTERDEN'S    ACT.  31 

be  sustained.  This  view,  however,  was  not  adopted,  the 
rule  being  stated  to  be  that  if  the  contract  be  such  that 
when  carried  out  it  would  result  in  the  sale  of  a  chattel, 
the  party  cannot  sue  for  work  and  labour. 

Goods  not  in  existence  at  the  time  of  the  contract,  hut  which  I,ord  Tender- 
were  to  be  made  and  delivered  at  a  future  time,  were  held  not  to  den's  Act. 
be  within  the  17th  section.     Lord  Tenterden's  Act  (/),  however, 
brought  them  within  it,  and  contracts  relating  to  such  goods  must 
now  be  in  writing,  just  as  much  as  those  relating  to  goods  already 
in  existence.     The  great  question,  when  such  a  contract  has  not 
been  reduced  to  writing,  is — is  this  a  contract  for  the  sale  of  goods 
so  as  to  be  within  the  statute,  or  is  it  a  contract  for  work  and 
labour,  so  that  writing  is  unnecessary  ?  On  this  constantly  arising 
question  Lee  v.  Griffin  is  an  important  authority,  and  must  be 
carefully  distinguished  from  Clay  v.  Yates  (m),  where  it  was  held  Clay  v. 
that  an  agreement  by  a  printer  to  print  a  book,  although  it  in-  Yates. 
volved  finding  materials,  was  not  within  the  statute,  and  need  not 
be  in  writing.     At  one  time  it  was  thought  that  the  test  to  be  ap- 
plied to  such  cases  was  whether  the  value  of  the  work  exceeded  the 
value  of  the  materials;  but  that  rule  seems  now  to  have  yielded  to 
the  one  laid  down  in  the  leading  case. 

Lee  v.  Griffin  is  also  occasionally  referred  to  as  an  authority  on  Exemptions 
the  law  relating  to  exemptions  from  stamp  duty.  The  following  from  stamp 
agreements  need  not  be  stamped: —  duty. 

(1.)  An  agreement  or  memorandum,  the  matter  whereof  is  not  Below  £5. 
of  the  value  of  £5,  or  is  incapable  of  pecuniary  measurement. 

(2. )  An  agreement  or  memorandum  for  the  hire  of  any  labourer,  Hire  of  ser- 
artificer,  manufacturer,  or  menial  servant.  vant. 

(3.)  An  agi-eement,  letter,  or  memorandum  made* for  or  relat-  Sale  of  goods, 
ing  to  the  sale  of  any  goods,  wares,  or  merchandise. 

(In  the  leading  case  it  was  held  that  an  agreement  to  make  a 
chattel  and  deliver  it  within  a  certain  time  is  within  the  exemp- 
tion), and 

(4.)  An  agreement  or  memorandum  made  between  the  master  Coasting, 
and  mariners  of  any  ship  or  vessel  for  wages  or  any  voyage  coast- 
wise from  port  to  port  in  the  United  Kingdom. 

Moreover,  when  there  are  several  documents,  but  the  papers  Several 
form  in  fact,  only  one  agreement,  only  one  of  them   need   be  documents 
stamped.     But  several  stamps  are  necessary  in  the  case  of  dis-  "ut  one  con" 
tinct  contracts,  though  on  the  same  paper  (n). 

When  an   unstamped  instrument  in  writing,  which  ought,  to  ment  un* 

(/)  9  Geo.  IV.  c.  14,  s.  7.  given  subject  at  an  agreed  price  tr,cts' 

(m)  1  H.  &  N.  73.     But  see  was  a  contract  for  the  sale  of  a 

Isaacs  v.  Hardy,  1  C.  &  E.,  287,  chattel. 

where  it  was  held  that  a  con-         (n)  Powell   v.   Edmunds,  12 

tract  by  an  artist  with  a  picture  East,  6. 

dealer  to  paint  a  picture  of  a 


32 


CONTRACT  CONTAINED  IN  SEVERAL  DOCUMENTS. 


I^ost  instru- 
ment. 

Unstamped 
receipt. 


Use  of 

unstamped 

agreement. 


have  been  stamped,  has  been  lost,  oral  evidence  of  its  contents 
cannot  be  given.  If,  however,  there  is  no  evidence  whether  it  was 
stamped  or  not,  it  is  presumed  to  have  been  properly  stamped  (o). 

If  a  transaction  is  capable  of  being  legally  proved  by  other  evi- 
dence than  that  of  the  unstamped  document,  such  evidence  is  ad- 
missible. For  instance,  though  an  unstamped  receipt  is  no  evi- 
dence of  payment,  the  fact  of  payment  may  be  proved  by  anyone 
who  saw  it,  and  he  may  use  the  unstamped  receipt  to  refresh  his 
memory  (p). 

An  unstamped  agreement  is  admissible  for  collateral  purposes, 
and  in  criminal  cases.  A  stamp  may  be  added  on  payment  of  the 
unpaid  duty,  a  penalty  of  £10,  and  an  additional  sum  of  £1. 


Contract  contained  in  several  Documents. 

[16.]  BOYDELL  i;.  DRTJMMOND. 

[11  East.  142  (1809).] 

This  action  was  brought  by  some  publishers  against  a 
person  who  had  agreed  to  take  a  quantity  of  Shakspe- 
rian  engravings,  coming  out  periodically  during  a  num- 
ber of  years.  It  was  necessary  to  the  publishers'  case 
to  show  that  the  agreement  was  in  writing,  as  it  was  in 
its  terms  incapable  of  performance  within  the  year. 
There  had  been  a  prospectus  which  the  defendant  had 
seen,  and  a  "  Shakspeare  subscribers,  their  signatures" 
book,  in  which  he  had  entered  his  name;  and  the  plain- 
tiffs thought  this  would  do.  It  was  held,  however,  that, 
as  there  was  no  means  of  connecting  the  "Shakspeare 
Subscribers'''  book  with  the  prospectus  without  oral  evi- 
dence,— no  reference  being  made  by  the  one  to  the  other 
— they  did  not  constitute  a  sufficient  memorandum. 

•  Another  point  the  publishers  tried  to  make  was  that,  as 
the  defendant  had  taken  and  paid  for  several  numbers, 
there  was  sufficient  "performance"  to  satisfy  the  statute. 


(o)  Marine  Investment  Co.  v. 
Haviside,  L:  R.5H.L  624. 


( p)  Rambert  v.  Cohen,  4  Esp. 
213. 


CONTRACT  CONTAINED  IN  SEVERAL  DOCUMENTS.  33 

But  it  was  held  that  part  performance  would  not  do,  for 
performance  could  not  mean  anything  less  than  com- 
pletion. 

This  case  is  the  leading  authority  for  the  position  that,  though 
a  contract  niay  be  collected  from  several  documents,  those  docu- 
ments must  be  so  connected  in  sense  that  oral  evidence  is  unnecessary  Connected  in 
to  showtlieir  connection;  in  other  words,  they  must  be  left  to  speak  sense. 
for  themselves. 

"Thestatute,"  says  Cranworth,  C,  in  an  important  case  (q).  "is  Ridgway  v. 
not  complied  with  unless  the  whole  contract  is  either  embodied  in  Wharton, 
some  writing  signed  by  the  party,  or  in  some  paper  referred  to  in  a 
signed  document,  and  capable  of  being  identified  by  means  of  the  de- 
scription of  it  contained  in  the  signed  paper.  Thus,  a  contract  to  grant 
a  leaseon certain  specified  terms  is,  of  course,  good.  So,  too,  even  if 
the  terms  are  not  specified  in  the  written  contract,  yet  if  the  writ- 
ten contract  is  to  grant  a  lease  on  the  terms  of  the  lease  or  written 
agreement  under  which  the  tenant  now  holds  the  same,  or  on  the 
same  terms  as  are  contained  in  some  other  designated  paper,  then 
the  terms  of  thestatuteare  complied  with.  The  two  writings  in  the 
case  I  have  put  become  one  writing.  Parol  evidence  is,  in  such  a 
case,  not  resorted  to  for  the  purpose  of  showing  what  the  terms  of 
the  contract  are,  but  only  in  order  to  show  what  the  writitig  is  which 
is  referred  to.  When  that  fact,  which,  it  is  to  be  observed,  is  a  fact 
collateral  to  the  contract,  is  established  by  parol  evidence,  the  con- 
tract itself  is  wholly  in  writing  signed  by  the  party." 

In  a  recent  case,  in  which  the  question  was  whether  a  person  had 
broken  a  contract  to  sell  some  land  to  a  builder,  it  was  held  that 
an  imperfect  and  irregular  document,  purporting  to  bean  agreement 
by  the  builder  to  purchase  and  pay  a  deposit,  was  sufficiently  con- 
nected with  a  receipt  for  the  deposit  which  the  seller  had  signed  to 
form  a  binding  agreement  (r).  So,  in  Cavew.  Hastings  (,s),  which 
was  an  action  for  breach  of  an  agreement  to  hire  a  carriage  for  a 
year,  it  was  held  that  a  letter  of  the  defendant's  to  the  plaintiff 
referring  to  "our  arrangement  for  the  hire  of  your  carriage  "  was 
sufficiently  connected  with  a  document  setting  forth  the  terms  of 
the  agreement.  Studds  v.  Watson,  28  Ch.  Div.  305,  and  Craig  v. 
Elliott,  15  L.  R.  It.  257,  are  to  the  same  effect. 

On  the  effect  of  part  performance  the  equity  leading  case  of  Les-  part  pCr. 
ter  v.  Foxcrofl  (l),  should  be  referred  to.  Courts  of  Equity  have  long  formauce. 
been  in  the  habit  when  there  were  acts  of  part  performance,  and 

{q)  Ridgway  v.  Wharton,  3  D.  N.  S.,  198. 

M.  &  G.  677,  and  see  Hussey  v.  (r)  Long?-.  Millar,41  L.T.N.S. 

Home-Payne,  4  App.  Ca.  311,  (s)  7  Q.  B.  D.  125. 

and  Williams  v.  Brisco,  48  L.  T.,  (1)  Colles'  P  C.  108. 


34  CONTRACT  CONTAINED  IN  SEVERAL  DOCUMENTS. 

the  nature  of  the  case  seemed  to  require  equitahle  interference,  of 
decreeing  specific  performance  of  verbal  agreements  void  at  law,  by 
reason  of  the  4th  section  of  the  Statute  of  Fra*uds,  as  being  con- 
tracts concerning  land.  The  general  rule  is  that,  to  j  ustify  such  in- 
terference, the  parties  must,  by  reason  of  the  act  relied  on,  be  in  a 
position  unequivocally  different  from  that  in  which,  according  to 
their  legal  rights,  they  would  have  been  if  there  were  no  contract 
(w).  In  such  cases  the  court  will  try  and  ascertain  what  was  the 
oral  contract  between  the  parties,  and  then  will  give  effect  to  it 
(x).  But,  as  has  been  often  observed,  the  court  will  enforce,  but  can- 
not make  contracts;  and  therefore  where  the  contract  is  incomplete, 
or  its  terms  uncertain,  specific  performance  will  not  be  decreed  (y). 
Maddison  v.  The  recent  and  interesting  case  of  Maddison  v.  Alderson  (z)  may  be 
Alderson.  referred  to  on  this  subject.  It  was  a  case  where  a  woman  had  been 
induced  by  an  old  Yorkshire  farmer  to  serve  him  as  housekeeper 
without  any  wages  for  a  number  of  years  on  the  faith  of  his  verbal 
promise  to  make  a  will  leaving  her  a  life  estate  in  the  farm.  It  was 
held  that  the  continuance  in  the  farmer's  service  in  reliance  on  this 
promise  was  no  answer  to  the  4th  section  of  the  Statute  of  Frauds. 


Written  Contracts  and  Oral  Evidence. 

[17.]  GOSS  v.  NUGENT. 

[5  B.  &  Ad.  58  (1833).] 

Lord  Nugent  entered  into  a  written  agreement  with  Mr. 
G-oss  to  buy  from  him  several  lots  of  land  for  £450,  the 
vendor  undertaking  to  make  a  good  title  to  all  the  lots. 
Soon  afterwards  Goss  found  that  as  to  one  of  the  lots  he 
could  not  make  a  good  title;  and  of  course  Lord  Nugent 
would  then  have  been  perfectly  justified  in  retiring  from 
the  transaction.  Instead  of  doing  so  he  agreed  orally 
to  waive   the  necessity  of  a  good  title  being  made  as 


(u)  Dale  v.  Hamilton,  5  Hare  L.  C.  131. 

381,  and  see  Surcombe  v.  Pinni-  (z)  8  App.  Ca.  467.     See  also 

ger,  3  D.  M.  &  G.  571.  May  v.  Thompson,  20  Ch.  D.  705; 

(a;)  Mundy  v.  Jollifife,  5  Myl.  Brittain  v.  Rossiter,  11  Q.  B.  D. 

&  C.  R.  177.  123;  and  Humphreys  v.  Green, 

(y)  Thynne  v.  Glengall,  2  H.  10  Q.  B.  D.  148. 


WRITTEN    CONTRACTS    AND    ORAL    EVIDENCE.  35 

to  that  lot.  Afterwards,  however,  his  lordship  seems  to 
have  altered  his  opinion  as  to  the  desirability  of  becom- 
ing the  owner  of  the  land,  and  he  declined  to  pay  the 
purchase-money,  relying  on  the  objection  to  the  title. 
In  answer  to  that,  Mr.  Gross  wished  to  prove  that  after 
Lord  Nugent  knew  about  the  defect  of  the  title  he 
agreed  to  waive  it.  This,  however,  was  not  allowed,  for 
the  rule  is  that  a  written  contract  within  the  statute  of 
Frauds  cannot  be  varied  by  oral  evidence  of  what  passed 
between  the  parties  subsequently  to  the  making  of  it. 


The  rule  that  a  written  contract  cannot  be  varied  by  parol  is 
subject  to  one  or  two  exceptions. 

Supposing  the  contract  to  be  one  which,  though  it  is  in  writing,  W  hen  agree- 

need  not  have  been,  it  may  be  varied  by  parol  evidence  ofwhattook  ment  need 

place  between  the  parties  after  the  date  of  the  agreement.     Thus,  . 

*  v  J  &  >  in  writing- 

if  the  original  agreement  between  Goss  and  Nugent  had  not  been 

required  by  the  Statute  of  Frauds  to  be  in  writing,  Nugent's  con- 
sent to  take  one  lot  though  the  title  was  bad  might  have  been 
proved  (a). 

And,  notwithstanding  the  general  rule  that  parol  evidence  of  To  show 
what  took  place  between  the  parties  previously  to  or  contemporane-  condition. 

ously  with  the  written  agreement  is  inadmissible,  such  evidence 
may  nevertheless  be  given  to  show  that  the  execution  of  the  writ- 
ten agreement  was  conditional  on  some  event  happening;  in  fact, 
that  a  document  purporting  to  be  a  final  and  absolute  contract 
purports  to  be  what  it  is  not.  Thus,  in  Pym  v.  Campbell  (b)  the 
parties  had  entered  into  a  written  agreement  for  the  sale  of  an 
interest  in  a  patent,  and  at  the  same  time  had  verbally  agreed  that 
the  sate  should  not  take  place  unless  an  engineer  named  Abernethie 
approved  of  the  invention.  Abernethie  did  not  approve,  and  the 
question  was  whether  the  condition  could  be  proved.  It  was  held 
that  it  could,  on  the  ground  that  the  object  of  the  evidence 
offered  was,  not  to  vary  a  written  agreement,  but  to  show  that 
there  was  not  an  agreement  at  all.  Similar  evidence  was  also  ad- 
mitted in  a  case  where  two  farmers  had  agreed  in  writing  that 
one  of  them  should  transfer  his  farm  to  the  other,  and  had  at  the 
same  time  verbally  agreed  that  the  transfer  should  be  conditional 
on  the  landlord's  consent  (c).  To  take  yet  another  illustration  of  Consignment 
constant  occurrence,  a  cattle  dealer  a  few  years  ago  wanted  to  send  note. 


(a)  See  also  Eden  v.  Blake,  13         (b)  6  E.  &  B.  370. 
M.  &  W.  614;  Noble  v.  Ward,         (c)  Wallis  v.  Littel,  11  C.  B., 
L.  R.  2  Ex.  135.  N.  S.,  369. 


36  WRITTEN    CONTRACTS    AND    ORAL    EVIDENCE. 

some  cattle  from  Guildford  to  the  Islington  market.  They  told 
him  at  Guildford  Station  that  the  heasts  would  be  duly  forward- 
ed to  King's  Cross;  but  they  induced  him  to  sign  a  consignment 
note  by  which  the  cattle  were  directed  to  be  taken  to  the  Nine 
Elms  Station,  which,  of  course,  was  not  so  far  as  the  cattle  dealer 
expected  them  to  go.  At  this  intermediate  station  they  remained, 
and  suffered  injury  from  not  being  fed  or  looked  after  properly. 
The  company's  view  was  that  the  consignment  note  was  conclu- 
sive evidence  of  the  terms  of  the  contract,  and  therefore  that  they 
had  never  undertaken  to  carry  beyond  the  Nine  Elms  Station. 
But  for  the  cattle-dealer  it  was  successfully  contended  that  the 
consignment  note  did  not  constitute,  a  complete  contract,  and  that  parol 
evidence  could  be  given  of  the  conversation  that  had  taken  place 
between  the  plaintiff  and  the  company's  servants  before  the  con- 
signment note  was  signed  (d). 

On  the  other  hand,  when  a  writing  appears  to  be  a  complete 
contract,  oral  evidence  to  vary  it  is  inadmissible.  In  Evans  v. 
Roe  (e)  for  instance,  a  memorandum  in  writing  by  which  the 
plaintiff  agreed  to  become  foreman  of  the  defendant's  works  was 
construed  to  show  a  weekly  hiring,  and  it  was  held  that  evidence 
of  a  conversati6n,  at  the  time  of  signing  the  contract,  tending  to 
show  that  a  yearly  hiring  was  intended,  could  not  be  given. 

There  are  other  cases,  however,  in  which  parol  evidence  may 
be  given,  notwithstanding  that  there  is  a  written  contract. 

Separate  oral  "The  existence  of  any  separate  oral  agreement  as  to  any  mat- 
agreement,  ter  on  which  a  document  is  silent,  and  which  is  not  inconsistent 
with  its  terms,  if  from  the  circumstances  of  the  case  the  court 
infers  that  the  parties  did  not  intend  the  document  to  be  a  com- 
plete and  final  statement  of  the  whole  of  the  transaction  between 
them"  (/)  may  be  proved,  e.g.,  on  the  execution  of  a  lease,  an 
oral  promise  by  the  lessor  to  keep  down  the  game  (g). 

To  show  Moreover,  oral  evidence  may  be  given  to  prove  fraud  or  ille- 

fraud,  ille-       gality,  to  show  the  situation  of  the  parties,  to  ascertain  the  mean- 
gality,  &c.       jQg  Qf  iiiegiDie  or  unintelligible  characters,  to  explain  technical 
or  provincial  expressions,  to  bring  in  usage  of  trade,  to  identify 
the  subject-matter,  to  introduce  a  principal  not  named  in  the  con- 
tract, and  for  a  variety  of  similar  purposes. 

' '  But  evidence  may  not  be  given  to  show  that  common  words,  the 
meaning  of  which  is  plain,  and  which  do  not  appear  from  the  con- 
text to  have  been  used  in  a  peculiar  sense,  were  in  fact  so  used  (/t). 

Latent  and  ^n  important  distinction  as  to  when  oral  evidence  can  be  given 

(d)  Malpas  v.  L.  &  S.  W.  Ry.  (g)  Morgan  v.  Griffith,  L.  R. 
Co.,  L.  R.  1  C.  P.  336.  6  Ex.  70. 

(e)  L.  R.  7  C.  P.  138;  and  see  (h)  Steph.  Dig.  Ev.  92,  and 
Cato  v.  Thompson,  9  Q.  B.  D.  616.  see  Blackett  v.  Roy,  Exch.  Ass. 

(/)  Steph.  Dig.  Ev.  89.  Co.,  2  C-  &  J.  244. 


WRITTEN    CONTRACTS    AND    ORAL    EVIDENCE.  37 

to  affect  a  written  instrument,  and  when  it  cannot,  is  between  a  patent 

latent  and  a  patent  ambiguity.     A  latent  abiguity  is  not  apparent  ambiguities. 

on  the  face  of  the  instrument.     The  document  seems  to  the 

stranger  reading  it  to  be  plain  and  simple  enough;  but,  really, 

there  are  two  states  of  fact  equally  answering  to  the  instrument. 

To  correct  such  an  ambiguity,  and  show  what  was  intended, 

parol   evidence   is   admissible.     Thus,   where   a  devise   was   to 

Stokeham  Huthwaite,  second  son  of  John  Huthwaite,  whereas 

realty  Stokeham  Huthwaite  was  the  third  son,  evidence  of  the 

surrounding  circumstances  was  admitted  to  show  whether  the 

testator  had  made  a  mistake  in  the  name  or  in  the  description  (•/). 

But  parol  evidence  cannot  be  given  to  correct  a  patent  ambiguity. 

Thus,  in  a  case  where  a  bill  of  exchange  had  been  drawn  for 

"Two  hundred  pounds,"  but  the  figuresatthe  top  were  "  £245," 

and  the  stamp  corresponded  to  the  higher  amount,  evidence  was 

not  admitted  to  show  that  £245  was  really  the  sum  intended  (k). 

In  the  well  known  case  of  Doe  v.  Needs  (/)  a  man  had  devised  one  Doe  v.  Needs. 

house  to  George  Gord,  the  son  of  George  Gord,  a  second  to  George 

Gord,  the  son  of  John  Gord,  and  a  third  to  "  George,  the  son  of 

Gord.'1'1     Evidence  was  admitted  to  show  that  the  testator  really 

meant  George,  the  son  of  George  Gord.     To  the  reception  of  such 

evidence  it  was  objected  that  the  ambiguity  was  patent.     But  it 

was  answered  that  it  could  only  appear  ambiguous  by  showing 

aliunde  the  non-existence  of  a  George,  the  son  of  Gord,  different 

from  the  other  two  Georges;  and  that  the  mention  of  another 

George  in  the  same  will  had  no  other  effect  than  extrinsic  proof 

of  the  same  fact  would  have  had. 

Though  parol  evidence  may  rarely  be  given  to  vary  a  written  ^.  ,  . , 
contract,  it  may  generally  be  given  to  rescind  it  altogether;  and  t0  rescind, 
the  better  opinion  is  that  this  is  so  even  where  the  contract  is  one 
of  those  which  are  required  by  statute  to  be  in  writing  (m).  But 
a  coutract  in  writing  good  under  the  Statute  of  Frauds  is  not  re- 
scinded by  a  subsequent  invalid  oral  contract  intended  to  be  sub- 
stituted for  the  former  one  (n). 

A  deed  cannot  be  varied  ordischarged  except  by  another  deed  (o). 
But,  in  action  to  recover  unliquidated  damages  for  breach  of  a  con- 
tract under  seal,  accord  and  satisfaction  after  breach  is  a  good  plea. 

(/)  Doe  d.  Le  Chevalier  v.  (n)  Noble  v.  Ward,  L.  R.  2 
Huthwaite,  3  B.  &  A.  632.  Ex.  135,  and   Moore  v.  Camp- 

(k)  Sanderson    v.     Piper,  5     bell,  10  Ex.  323. 
Bing.  N.  C.  425,  (o)  West  v.  Blakeway,  2  M. 

(/)  2  M.  &  W.  129.  &  G.  729. 

(m)  Goman    v.   Salisbury,  1 
Vern.  240. 


38  WRITTEN    CONTRACTS    AND    ORAL    EVIDENCE. 


Written  Contracts  and  Evidence  of  Usage. 


[18.]  -WIGGLESWORTH  r.  D  ALLISON. 

[1  Doug.  200  (1779).] 

By  lease  dated  March  2d,  1753,  Dallison  let  Farmer 
Wigglesworth  have  a  held  in  Lincolnshire  for  21  years. 
In  the.last  year  of  his  tenancy,  though  he  knew  that  he 
had  to  give  up  the  land  almost  immediately,  the  farmer 
sowed  his  field  with  corn.  In  doing  what  might  seem 
a  rash  and  improvident  act,  Mr.  Wigglesworth  was  rely- 
ing on  a  certain  local  custom,  which  entitled  an  outgoing 
tenant  of  lands  to  his  way-going  crop,  that  is,  to  the  corn 
left  standing  and  growing  at  the  expiration  of  the  lease. 
Dallison's  answer  to  this  claim  was  that,  if  any  such  cus- 
tom existed  at  all,  it  had  no  application  to  the  present 
case,  where  the  terms  between  landlord  and  tenant  had 
been  carefully  drawn  up  in  a  lease  by  de<ed,  and  no  men- 
tion made  therein  of  any  custom.  The  court,  however, 
decided  in  favour  of  the  custom,  Lord  Mansfield  re- 
marking that,  while  it  was  just  and  reasonable  and  for 
the  benefit  of  agriculture,  it  did  not  alter  or  contradict 
the  agreement  in  the  lease,  but  only  superadded  a  right. 

Custon  can-  Parol  evidence  of  the  custom  of  a  particular  place  or  trade  can- 
not vary  not  be  given  to  vary  a  written  contract,  if  the  terms  of  the  con- 
written  con-  tract  are  perfectly  clear  and  exhaustive  (and  whether  they  are 
so  is  for  the  court,  and  not  for  the  jury,  to  decide)  (p)  the  maxim, 
exprcssum  focit  ccssare  taciturn  has  application.  In  one  case  it  ap- 
peared that  by  the  custom  of  the  country  the  out-going  tenant 
was  entitled  to  an  allowance  for  folage  from  the  incoming  tenant 
This,  therefore,  if  the  lease  had  been  silent  on  the  subject,  would 
have  had  to  be  paid.  But  the  lease  was  not  silent.  It  particu- 
larly specified  the  payments  which  were  to  be  made  by  the  in- 
coming to  the  outgoing  tenant,  and  amongst  them  it  did  not  men- 
tion any  payment  in  respect,  of  folage.     It  was  held,  therefore,  that 

(p)  Bowes  v.  Shand,  2  App.  Ca.  455. 


tract. 


WRITTEN   CONTRACTS    AND    ORAL    EVIDENCE.  39 

the  terms  of  the  lease  were  perfectly  clear,  and  excluded  the  cus- 
tom (q).  "  Where  there  is  a  written  agreement  between  the  par- 
ties," said  Bayley,  J.,  "it  is  naturally  to  he  expected  that  it 
will  contain  all  the  terms  of  their  bargain;  but  if  it  is  entirely 
silent  as  to  the  terms  of  quitting,  it  may  let  in  the  custom  of  the 
country  as  to  that  particular.  If,  however,  it  specifies  any  of 
those  terms,  we  must  then  go  by  the  lease  alone.  The  custom 
of  the  country  applies  to  those  cases  only  where  the  specific  terms 
are  unknown;  and  it  is  founded  on  this  principle,  that  justice 
requires  that  a  party  should  quit  upon  the  same  terms  as  he  en- 
tered. ' ' 

So,  too,  in  mercantile  contracts.     If  you  insure  a  ship  and  cargo 
for  a  voyage,  and  the  terms  of  the  policy  are  that  "the  insur- 
ance on  the  ship  shall  continue  till  she  is  moored  24  hours,  and 
on  the  goods  till  safely  landed,"  and  your  ship  reaches  the  haven, 
and  has  been  moored  the  24  hours,  and  then  afterwards,  and  be- 
fore being  landed,  the  goods  are  lost,  the  insurance  people  will  not 
be  allowed  to  cheat  you  by  showing  a  custom  that  the  risk  on  the 
goods  as  well  as  on  the  ship  expires  in  24  hours;  why,  you  expressly^ 
stipulated  that  ship  and  cargo  should  stand  on  different  footings; 
and  are  entitled  to  the  benefit  of  your  foresight,  all  the  customs 
in  the  universe  notwithstanding  (r).     Similarly,  when  a  man  in 
the   pig  trade  sold   what  he   warranted    to  be  "prime   singed  Our  "prime 
bacon,"  but  which  proved  to  be  neither  palatable  nor  fragrant,  signed 
lie  was  not  permitted  to  turn  round  and  produce  a  convenient  Dacou- 
custom  in  his  trade  to  the  effect  that  "prime  singed  bacon  "  is 
prime  singed  bacon  none  the  less  because  it  happens  to  be  very 
much  tainted  (s).     So,  in  the  recent  case  of  Hayton  v.  Irwin  (t), 
where  by  the  terms  of  a  charter-party  a  ship  was  to  deliver  at 
Hamburg,  "or  so  near  thereto  as  .she  could  safely  get,"  it  was 
held  that  a  defence  alleging  that  by  the  custom  of  the  Port  of 
Hamburg  the  charterer  was  not  bound  to  take  delivery  elsewhere 
than  at  Hamburg  was  bad,  inasmuch  as  it  sought  to  set  up  a  cus- 
tom inconsistent  with  the  written  contract. 

But  though  written  contract  cannot  be  varied  by  evidence  of  But  may  ex- 
the  custom  of  a  particular  trade  or  place,  it  may  be  explained  P*am  or 
thereby,  and  it  may  have  incidents  annexed. 

(1.)  It  may  be  explained.  Evidence  has  been  admitted  to  show 
that  the  Gulf  of  Finland,  though  not  geographically  so,  was  al- 
ways considered  by  merchants  as  part  of  the  Baltic  («)  ;  that 
"  good  barley  "  and  "  fine  barley  "  were  different  things  (,v) ;  that 
1000  rabbits  meant  1200  (y)  ;  and  that,  when  a  young  lady  was 

(q)  Webb  v.  Plummer,  2  B.  &  (it)  Ulide  v.  Walters,  3  Camp. 

Aid.  746.  16. 

(r)  Parkinson  v.  Collier,  Park  (x)  Hutchinson  v.  Bowker,  5 

Ins.,  7th  ed.  p.  470.  M.  &  W.  535. 

(s)  Yates   v.    Pym,  6   Taunt.  (y)  Smith  v.  Wilson,  3  B.  & 

446.  Ad.  728. 

(/)  5  C.  P.  D.  130. 


40 


WRITTEN   CONTRACTS    AND   ORAL   EVIDENCE. 


Custom  to 
take  holi- 
days. 


Stock  Ex- 
change us- 
ages. 


Requisites  of 
custom. 


Dancing  in 
somebody 
else's  field. 

Exercising 
horses. 


Selling  flint 
stones  turned 
in  ploughing. 


engaged  as  an  actress  for  "three  years,"  the  three  years  meant 
only  the  theatrical  seasons  of  those  years  (z). 

(2.)  Incidents  may  be  annexed.  The  leading  case  is  an  excellent 
illustration  here.  So  is  Reg.  v.  Stoke  upon  Trent  (a),  where  it 
was  held  that  where  some  workmen  by  written  contract  engaged 
themselves  "to  lose  no  time  on  our  own  account,  to  do  our  work 
well  and  behave  ourselves  in  every  respect  as  good  servants," 
evidence  might  nevertheless  be  given  of  a  custom  in  the  particu- 
lar trade  for  the  workmen  to  have  certain  holidays  in  the  year, 
and  the  Sundays  to  themselves.  The  principle  on  which  inci- 
dents are  allowed  to  be  annexed  to  written  contracts  is  that  the 
parties  did  not  mean  to  express  in  writing  the  whole  of  the  contract 
by  which  they  intended  to  be  bound,  but  to  contract  with  refer- 
ence to  certain  known  usages. 

*  Except  when  the  mode  of  dealing  is  that  of  a  particular  house, 
such  as  Lloyd's  (in  which  case  he  must  be  proved  to  have  been 
acquainted  with  it)  (b),  a  man  is  bound  by  the  usages  of  the 
place  or  trade  with  which  his  contract  has  to  do,  and  his  igno- 
rance of  those  usages  is  immaterial.  A  man,  for  instance,  who 
employs  a  broker  on  the  Stock  Exchange  is  bound  by  the  usages 
of  the  Stock  Exchange  (c)  ;  and  a  man  in  London  who  authorizes 
another  to  contract  for  him  at  Liverpool  is  bound  by  the  Liver- 
pool usages. 

To  make  a  particular  custom  good,  it  must  be  immemorial, 
continued  peaceable,  reasonable,  certain,  compulsory,  and  not  in- 
consistent. Reasonableness  is  a  question  of  law  for  the  court. 
In  Hall  v.  Nottingham  (d),  it  was  held  that  a  custom  for  the  in- 
habitants of  a  parish  to  enter  on  a  person's  field  in  the  parish,  put 
up  a  maypole,  dance,  play  at  kiss  in  the  ring,  and  otherwise  en- 
joy themselves,  at  any  time  in  the  year,  in  defiance  of  the  pro- 
prietor, was  good.  But  in  the  previous  case  of  Sowerby  v.  Cole- 
man (e)  it  had  been  held  that  a  custom  for  inhabitants  of  a  parish 
to  train  and  exercise  horses  at  all  seasonable  times  of  the  year  in 
a  place  beyond  the  limits  of  the  parish  was  bad.  And  in  another 
recent  case  (/)  it  was  held  that  a  custom  that  an  outgoing  ten- 
ant should  look,  not  to  the  landlord,  but  to  the  incoming  tenant, 
for  payment  for  seeds,  tillages,  &c,  could  not  be  supported,  for  it 
was  "  unreasonable,  uncertain  and  prejudicial  to  the  interests 
both  of  landlords  and  tenants."  In  Tucker  v.  Linger  (g)  it  was 
held  that  a  custom  universal  in  the  chalk  districts  for  the  tenant 


(z)  Grant  v.  Maddox,  15  M. 
&  W.  737. 

(a)  5  Q.  B.  303. 

(b)  Gabay  v.  Lloyd,  3  B.  &  C. 
797. 

(e)  Sutton  v.  Tat  ham,  10  Ad. 
&  E.  27  ;  and  Bayliffe  v.  Butter- 
worth,  1  Ex.  425.  But  see 
Neilson  v.  James,  9  Q.  B.  D. 


546. 

(d)  1  Ex.  Div.  1. 

(<?)  L.  R.  2  Ex.  96. 

(  f )  Bradburn  v.  Foley,  3  C. 
P.  D.  129. 

(g)  51  L.  J.  Ch.  713  ;  and  see 
Goodman  v.  Saltash,  7  App.  Ca. 
633,  an  oyster  case  from  Corn- 
wall. 


WRITTEN    CONTRACTS   AND    ORAL    EVIDENCE.  4-1 

of  a  farm  to  sell  the  flint  stones  turned  up  in  ploughing  was 
reasonable,  and  could  be  proved,  notwithstanding  an  agreement 
reserving  to  the  landlord  "all  mines,  minerals,  quarries  of  stone 
sand,  brick-earth,  and  gravel."  "  It  is  good  for  the  land,"  said 
Jessel,  M.R.,  "that  the  flints  should  be  removed,  and  it  appears 
to  me  not  unreasonable  that  the  tenant  who  has  to  remove  them 
as  injurious  to  the  land  should  sell  them  for  his  own  benefit.  I 
think  the  court  should  not  interfere  with  a  custom  of  the  coun- 
try except  upon  very  strong  grounds. ' ' 


Bailments. 

COGGS  v.  BERNARD. 

[2  Ld.  Raym.  909  (1704).] 

Coggs  required  several  hogsheads  of  brandy  to  be 
moved  from  one  London  cellar  to  another.  Instead  of 
employing  a  regular  porter  to  do  the  job,  he  accepted 
the  gratuitous  services  of  his  friend  Bernard,  who  under- 
took to  effect  the  removal  safely  and  securely.  But  the 
amateur  did  his  work  so  clumsily  that  one  of  the  casks 
was  staved,  and  much  of  the  liquor  was  lost.  Coggs 
was  not  pleased;  and,  as  he  successfully  maintained  an 
action  against  Bernard  for  damages,  probably  that  gen- 
tleman never  again  volunteered  rash  acts  of  friendship. 


[19.] 


WILSON  v.  BRETT.  [20.] 

[11  M.  and  W.  113  (1843).] 

A  person  who  rides  ahorse  gratuitously  at  the  owner's 
request  for  the  purpose  of  showing  him  for  sale  is  bound, 
in  so  doiDg,  to  use  such  skill  as  he  actually  possesses. 
"The  defendant,"  said  Parke,  B.,  "was  shown  to  be  a 
person  conversant  with  horses,  and  was  therefore  bound 
to  use  such  skill  as  a  person  conversant  with  horses  might 


42 


BAILMENTS. 


reasonably  be  expected  to  use: 
guilty  of  negligence." 


if  he  did  not,  he  was 


Definition. 


I^ord  Holt's 
division. 


Our  division. 


Deposit  um. 


Vigilance  of 
bailor. 


Mandatum. 


Coggs  v.  Bernard  is  the  great  case  on  Bailments.  A  bailment 
is  a  delivery  of  a  thing  in  trust  for  some  special  case,  the  person 
who  delivers  it  being  called  the  bailor,  and  the  person  to  whom 
it  is  delivered  the  bailee. 

Lord  Holt  divides  bailments  into  six  kinds: — depositum,  manda- 
tum, commodatum,  vadium,  locatio  rci  and  locaiio  operis  fac^endi. 
But  it  is  better  to  begin  with  this  classification  of  bailments: — 

1.  For  the  benefit  of  the  bailor,  alone, 

2.  For  the  benefit  of  the  bailee,  alone, 

3.  For  the  mutual  benefit,  of  bailor  and  bailee. 

1.   Under  the  first  head  come  depositum  and  mandatum. 

Depositum — the  delivery  of  goods  to  be  taken  care  of  for  the  bailor 
without  the  bailee  receiving  anything  for  his  trouble;  e.  g.,  going 
away  from  home  to  the  sea-side,  I  ask  my  friend  Brown  to  take 
care  of  my  plate.  The  depositary  (unless  he  has  spontaneously 
offered  to  take  care  of  the  goods)  is  responsible  only  for  gross  neg- 
ligence. But,  having  been  grossly  negligent,  he  cannot  defend 
himself  by  showing  that  he  has  lost  his  own  things  with  the  bailor'1  s  (h). 

The  bailor  must  exercise  a  certain  amount  of  vigilance  in  the 
selection  of  his  bailee.  If  I  were  to  entrust  my  watch  to  an  idiot, 
or  a  little  girl,  to  take  care  of,  no  amount  of  negligence  on  their 
part  would  give  me  a  right  of  action  against  them.  I  must  bear 
the  consequences  of  my  folly,  and  be  more  sensible  next  time. 

As  a  rule,  the  depositary  may  not  make  use  of  the  thing  depos- 
ited. But,  if  no  harm  would  come  thereby,  he  may:  and,  if  I 
"deposit  "  my  horse  with  a  man,  he  not  only  may  but  ought  to 
give  it  proper  exercise. 

The  depositary  must  give  up  the  thing  deposited  to  the  owner, 
even  though  a  stranger,  on  demand  (i). 

3landatum — the  delivery  of  goods  to  be  done  something  with  for 
the  bailor  without  the  bailee  receiving  anything  for  his  trouble 
e.  g.,\  ask  my  friend  Jones  to  post  a  letter  for  me. 

As  in  depositum  (and  mandatum  is  only  a  kind  of  superior  deposi- 
tum) the  bailee  is  liable  for  gross  negligence  only.  The  contract 
between  Coggs  and  Bernard  was  one  of  mandatum,  though  it  is  to 
be  observed  that  Bernard  laid  additional  responsibility  on  his 
shoulders  by  undertaking  to  effect  the  removal  "safely."  In  the 
well  known  case  of  Dartnell  v.  Howard  (A-)  the  action  was  brought 


(h)  Doorman  v.  Jenkins,  2 
Ad.  &  E.  258. 

(i)  Buxton  v.  Baughan,  6  C. 
&  P.  674,  and  Biddle  v.  Bond,  6 
B.  &  S.  225. 


(k)  4  B.  &  C.  345,  and  see 
Wilkinson  v.  Coverdale,  1  Esp. 
75,  and  Robinson  v.  Ward,  R, 
&  M.  274. 


BAILMENTS.  43 

for  negligently  laying  out  money  on  bad  securities.  The  defend- 
ants had  (so  far  as  appeared  from  the  pleadings)  acted  in  the  mat- 
ter gratuitously,  and  on  this  ground  it  was  held  that  the  plaintiffs 
were  not  entitled  to  recover  damages  from  them. 

The  rule,  however,  that  a  mandatary  is  responsible  for  gross  Skilled  man- 
negligence  only,  is  to  some  extent  qualified  by  the  maxim  spondee  datarics. 
peritiam  artis.  It  is  stated  in  the  narrative  that  gross  negligence 
was  not  imputed  to  Brett.  Literally,  this  is  true.  But  what  is 
ordinary  negligence  in  one  man  is  gross  negligence  in  another;  and 
the  omission  by  a  person  endowed  with  skill  to  make  use  of  that 
skill  is  really  nothing  short  of  gross  negligence.  In  this  view, 
Wilson  v.  Brett  is  no  exception  to  the  rule  that  a  gratuitous  bailee 
is  responsible  only  for  gross  negligence  ;  constructively,  Brett  was 
guilty  of  gross  negligence.  So,  too,  a  doctor  who  attended  a  poor 
person  out  of  charity  would  be  liable  for  merely  ordinary  negli- 
gence in  the  treatment  of  his  patient ;  constructively,  it  would  not 
be  merely  ordinary  negligence,  because  his  position  implies 
skill  (/).  • 

An  action  cannot  be  brought  on  a  promise  to  enter  on  a  gratui-  Considera- 
tous  bailment,  there  being  no  consideration  for  it.     But  if  the  won  m  man- 
promisor  actually  sets  about  the  business,  he  then  becomes  respon-  (  a  um' 
sible  for  gross  negligence,  the  trust  reposed  in  him  by  the  bailor 
being  a  sufficient  consideration  (m). 

2.   Under  this  head  (for  the  benefit  of  the  bailee  alone)  comes 

Commodaium — the  lending  of  a  thing  to  be  returned  just  as  it  is  ;  Commodatum. 
e.g.,  I  lend  Jones  my  Umbrella  to  go  through  the  rain  with  ;  I 
don't  expect  him  to  return  me  another  umbrella,  but  the  same  one. 
If  I  expected  a  borrower  to  return  me,  not  the  identical  things,  Mutuum. 
but  similar,  e.g.,  if  I  were  indiscreet  enough  to  lend  him  half  a 
dozen  postage  stamps,  or  a  five  pound  note,  it  would  not  be  com- 
modatum, but  mutuum. 

As  the  bailee  is  the  only  person  who  gets  any  good  out  of  com- 
modatum (except  perhaps  a  lawyer  now  and  then),  he  is  responsi- 
ble even  for  slight  negligence  :  the  more  so  as  by  the  fact  of  bor- 
rowing he  may  be  taken  to  have  represented  himself  to  the  lender 
as  a  fit  and  proper  person  to  be  entrusted  with  a  valuable  article. 

The  commodatary  must  strictly  pursue  the  terms  of  the  loan.  Duties  of 
If  I  borrow  a  horse  or  a  book  to  ride  or  to  read  myself,  I  have  no  borrower, 
business  to  allow  somebody  else  to  ride  or  to  read  it  (n).     If  the 
horse  is  lent  for  the  highway,  I  must  not  take  it  along  dangerous 
bridle  paths.     The  bailee  must  restore  the  chattel,  when  the  time 

(I)  Shiellst'.  Blackburne,  1  H.  tion  taken  by  North,  C.  J.,  in 

Bl.  158.  Bringloe  v.  Morrice,  1  Mod.  210, 

(m)  Elsee  v.  Gatward,  5T.  R.  between lendingahorsetoaper- 

148.  son  for  ^.specified  time  and  lend- 

(n)  See.   however,  a  distinc-  ing  it  for  a  particular  journey. 


44  BAILMENTS. 

has  expired,  just  as  it  was,  reasonable  wear  and  tear  excepted. 
He  is  not  responsible,  however,  if  the  article  perishes  by  inevita- 
ble accident,  or  by  its  being  stolen  from  him  without  any  fault  of 
his.  In  mutuum,  on  the  other  hand,  the  right  of  property  and 
risk  of  loss  are  immediately  on  the  bailment  transferred  to  the 
borrower,  so  that  if  he  is'  robbed  before  he  gets  home,  he  must 
still  pay  the  equivalent  to  the  lender. 
Duties  of  ^e  ^a^or  rnust  disclose  defects  of  which  he  is  aware  ;  as,  for 

lender.  instance,  that  the  gun  which  he  lends  his  friend  Brown  is  more 

likely  than  not  to  burst  and  blow  his  hand  off  (o).  The  ground  of 
this  obligation  is  that,  token  a  person  lends,  he  ought  to  confer  a 
benefit,  and  not  to  do  a  mischief  (p).  The  lender,  however,  will 
not  be  responsible  for  defects  of  which  he  is  ignorant  (q). 

The  commodatary  has  no  lien  on  the  thing  lent  for  antecedent 
debts  due  to  him;  nor,  of  course,  can  he  keep  it  till  the  bailor  pays 
the  necessary  expenses  he  has  been  put  to  in  the  keeping  of  it. 

3.  Under  the  last  head  (for  the  mutual  benefit  of  bailor  and 
bailee)  come  vadium,  locatio  rei,  and  locatio  operis. 
Vadium.  (1-)    Vadium  (otherwise  known  as  pignoris  acceptum) ,  the  con- 

tract of  pawn. 

The  benefit  being  mutual,  the  degree  of  diligence  required  of 
the  bailee  is  <;  ordinary."  If,  in  spite  of  due  diligence,  the  chat- 
tel is  lost  while  in  the  pawnee's  keeping,  he  may  still  sue  the 
pawner  for  the  amount  of  his  debt.  • 

Pawning  at  The  effect  of  the  contract  of  pawn  is  not  (like  that  of  a  mort- 
common  law.  gage  of  personalty)  to  pass  the  property  in  the  chattel  to  the 
bailee  ;  nor,  on  the  other  hand,  is  it  (like  that  of  a  lien)  merely 
to  give  him  a  hostage,  but  it  gives  him  such  a  special  property 
in  the  thing  pawned  as  enables  him,  if  the  pawner  makes  default, 
to  sell  it  and  pay  himself  (r)  ;  the  surplus  being,  of  course,  handed 
back  to  the  pawnor. 

As  a  rule,  the  pawnee  may  not  make  use  of  the  thing  bailed  to 
him.  If,  however,  it  is  an  article  which  cannot  be  the  worse  for 
the  use — jewellery,  for  instance — he  may  ;  but  in  such  a  case  he 
would  be  responsible  for  the  loss,  no  matter  how  it  happened. 
Moreover,  if  the  pawn  be  of  such  a  nature  that  the  pawnee  is 
put  to  expense  to  keep  it,  e.g.,  if  it  be  a  horse  or  a  cow,  the 
pawnee  may  make  use  of  it, — riding  the  horse  or  milking  the 
cow — as  a  recompense  for  the  cost  of  maintenance. 
T}     p     ,  Such  are  some  of  the  common  law  rules  as  to  vadium ;  and  they 

brokers'  Act.  apply  now  to  cases  where  the  sum  lentexceeds  £10.  But  when  the 

(o)  Blakemore  v.  Brist.  &  Ex.  (q)  MacCarthy  v.  Young,  6  H. 

Ry.  Co.,  8  E.  &  B.  1035.  &  N.  329. 

(p)  Adjuvariquippenos,  non  (r)  Tucker  v.   Wilson,   1  P. 

decipi,  beneficio  oportet.     Dig.  Wms.    260 ;  but  see  Clarke  t>. 

Lib.  xiii,  tit.  vi.  17.  Gilbert,  2  Bing.  N.  C.  356. 


BAILMENTS.  45 

sum  lent  by  way  of  vadium  is  less  than  £10,  the  Pawnbroker's 
Act,  1872  (s),  applies.  That  Act  provides  that  every  pledge  must 
be  redeemed  within  twelve  months  and  seven  days.  If  it  is  not 
redeemed  within  that  time,  what  becomes  of  it  depends  on  whether 
the  sum  lent  was  more  or  less  than  10s.  If  it  was  10s.  or  less,  the 
article  then  becomes  the  pawnbroker's  absolute  property.  If  it 
was  more,  the  pawnbroker  may  sell  the  thing  pledged,  but  must 
hand  over  the  surplus,  after  satisfaction  of  his  debt  and  interest, 
to  the  pawnor.  Till  actual  sale,  however,  a  pledge  pawned  for  above 
10s.  is  redeemable,  though  the  year  and  seven  days  have  gone  by 
(t).  The  pawnbroker  is  liable  lor  loss  by  fire,  and  should  protect 
himself  by  insuring  (u).  He  is  liable,  too,  for  any  injury  done  to 
the  thing  pawned  by  his  ' '  default  and  neglect,  or  wilful  misbe- 
haviour," and  a  court  of  summary  jurisdiction  may  order  com- 
pensation for  such  depreciation  (a;).  Section  25  says  that  "the 
holder  for  the  time  being  of  a  pawn-ticket  shall  be  presumed  to 
be  the  person  entitled  to  redeem  the  pledge, "  but  it  has  been  held 
in  a  recent  case  that  the  owner  of  an  article  that  has  been  stolen 
and  pawned  may  (notwithstanding  the  sectionj  recover  it,  or  its 
value,  from  the  pawnbroker  (y). 

(2.)  Locatio  rei — the  every  day  contract  of  the  hiring  of  goods.  Locatio  rei. 

This  being  a  mutual  benefit  bailment,  the  degree  of  negligence 
for  which  the  hirer  is  answerable  is  "ordinary."  The  hirer  of  a 
horse  once  physicked  it  himself,  instead  of  calling  in  a  veterinary 
surgeon.  He  prescribed  "a  stimulating  dose  of  opium  and  gin- 
ger," and  of  course  the  animal  "soon  after  takingit  died  in  great 
agony."  On  the  ground  that  he  had  not  exercised  "that  degree 
of  care  which  might  be  expected  from  a  prudent  man  towards  his 
own  horse,"  the  hirer  was  held  liable  (z). 

If  the  hirer  does  something  plainly  inconsistent  with  the  terms 
of  the  bailment,  e.g.,  if  he  sells  the  article  hired,  the  bailment  is 
at  an  end  («). 

It  may  be  mentioned  here  that  what  is  called  the  hire  system, 
under  which  goods  are  delivered  to  a  person  to  be  paid  for  by  in- 
stalments, does  not  vest  the  property  in  the  goods  in  the  pur- 
chaser till  all  the  instalments  are  paid  (b). 

(3.)  Locatio  operis  faeiendi.  When  the  bailee  is  to  bestow  labour  Locatio  operia 
on  or  about  the  thing  bailed,  and  to  be  paid  for  such  labour.  faeiendi. 

Bailees  of  this  class  are,  for  instance,  wharfingers,  agisters,  car- 
riers, &c. 

Generally  speaking,  the  rule  as  to  diligence  is  the  same  as  in 

(s)  35  &  36  Vict.  c.  93.  (z)  Deane  v.  Keate,  3  Camp.  4. 

(/)  Sec.  18.  (a)  Fenn  v.  Bittlestone,  7  Ex. 

(w)  Sec.  27.  159. 

(x)  Sec.  28.  (b)  Ex  parte  Crawcour,  9  Ch. 
(y)  Singer  Manufacturing  Co.     Div.  420. 
v.  Clark,  49  L.  J.  Ex.  224. 
5   COMMON   LAW. 


46  BAILMENTS 

vadium  and  locatio  ret  (c).  But  the  bailee  must  have  his  wits  about 
him,  and  take  proper  precautions  against  casualties  that  may  pos- 
sibly happen  (d)  and  when  the  bailee  is  a  person  exercising  a  pub- 
lic employment,  e.g.,  a  common  carrier  or  an  innkeeper,  he  is  re- 
quired to  exert  much  greater  circumspection.  In  fact,  a  common 
carrier  is  an  insurer,  being  responsible  for  loss  by  any  cause  except 
the  act  of  God  or  the  king's  enemies.  Moreover,  if  a  bailee  elects 
to  deal  with  the  property  entrusted  to  him  in  a  way  not  authorized 
by  the  bailor  (e.g.,  if,  having  contracted  to  warehouse  goods  at  one 
place,  he  warehouses  them  at  another,  where  they  are  accidentally 
destroyed)  betakes  upon  himself  the  risks  of  so  doing  (e). 

An  agister,  (e.g..  a  person  who  takes  in  horses  or  cattle  to  feed 
in  his  pasture)  is  not  an  insurer,  but  must  use  reasonable  care  (/). 
For  instance,  if  he  leaves  the  gates  of  his  field  open,  or  his  fences 
are  out  of  order,  he  will  be  liable  for  loss  happening  thereby  (g). 
So  if  he  has  not  taken  proper  precautions  to  prevent  mischief,  he 
will  be  liable  for  an  injury  inflicted  by  another  animal  (h).  In 
the  absence  of  agreement,  an  agister  has  no  lien  (i). 

In  Clarke  v.  Earnshaw  (j)  the  plaintiff  had  delivered  a  time- 
piece to  the  defendant,  a  watchmaker,  to  be  repaired.  The  watch- 
maker had  locked  it  up  in  a  drawer  in  his  shop,  from  which  it  was 
stolen  by  a  youth  who  used  to  sleep  in  the  shop  for  the  express  pur- 
pose of  protecting  the  property.  The  defendant  was  held  liable  be- 
cause it  appeared  that  he  had  put  other  watches  in  a  more  secure 
place. 

Trover  -^s  t°  the  right  to  maintain  trover  in  these  bailments  itmay  be 

remarked  that  in  radium  and  locatio  rei  it  is  only  the  bailee  who 
can  do  so;  for  in  either  of  those  contracts  he  can  exclude  the  bailor 
from  the  possession.  But  in  the  other  kinds  of  bailment  either 
bailor  or  bailee  may  sue,  but  the  recovery  of  damages  by  either 
would  deprive  the  other  of  his  right  of  action. 

Vituperative       The  terms  "gross  negligence,"   "ordinary  negligence,"  &c, 
epithets.  have  been  freely  used  in  speaking  of  these  bailments.  Many  emi- 

nent lawyers,  however,  maintain  that  there  are  really  no  degrees 
of  negligence,  and  that,  as  Rolfe,  B.,  said  in  Wilson  v.  Brett, 
negligence  and  gross  negligence  are  "the  same  thing,  with  the 
addition  of  a  vituperative  epithet." 

(c)  See  Searle  v.  Laverick,  L.  (g)  Groueottr.  Williams.  32  L. 

R.  9  Q.  B.  122.  J.,  Q.  B.  237. 

{d)  Leek  v.  Maestaer,  1  Camp.  (h)  Smith  v.  Cook,  1  Q.  B.  D. 

138;  and  see  Thomas  v.  Day,  4  79. 

Esp.  262.  (i)  Jackson  v.  Cummins,  5  M. 

(e)  Lilley  v.  Doubleday,  7  Q.  &  W.  342,  and  Richards  v.  Sy- 

B.  D.  510.  mons,  8  Q.  B.  90. 

(/)  Broadwater  v.  Blot,  Holt,  [j)  Gow,  30. 
547. 


INNKEEPERS.  47 


Liability  of  Innkeepers. 

CALYE'S  CASK  [21.] 

[8  Coke  33  (1584).] 

A  traveller  arriving  at  an  inn  dismounted  from  his 
horse,  and  told  the  landlord  to  send  it  out  to  pasture. 
The  landlord,  accordingly,  did  so;  but,  when  its  master 
wished  to  resume  his  journey,  it  was  nowhere  to  be 
found.  The  owner  now  tried  to  make  out  that  the 
landlord  was  responsible.  But  it  was  held  that  he  was 
not,  for  the  horse  had  been  sent  to  the  field  at  the  ex- 
press desire  of  the  guest. 

The  liability  of  innkeepers,  like  that  of  common  carriers,  prob-  Common  law 
ably  had  its  origin  in  their  readiness  to  collude  with  highway-  liability, 
man,  often  their  best  customers.     That  liability  was  at  common 
law  very  great.     They  were  not  indeed  responsible  for  losses 
arising  by  the  act  of  God  or  the  king's  enemies,  but  they  were 
responsible  for  all  other  losses,  unless  they  could  make  out  clearly 
that  it  was  the  guest's  own  fault.     In  1863,  however,  the  liabil-  ^c^  0f  1863. 
ity  of  innkeepers  was  greatly  restricted,  and  by  the  Act  then 
passed  (k)  an  innkeeper  is  never  bound  to  pay  more  than  £30  for 
loss  of  or  injury  to  property  brought  to  his  inn,  except  in  the  fol- 
lowing cases: — 

1.  Where  the  article  which  has  been  lost  or  injured  is  "  a  Horse  or 
horse  or  other  live  animal,  or  any  gear  appertaining  thereto,  or  carnage, 
any  carriage. ' ' 

2.  Where  the  property  has  been  stolen,  lost,  or  injured  through  "Wilful 
the  wilful  act,  default,  or  neglect  of  the  innkeeper,  or  of  one  of  act,  default 
his  servants.  *  or  neglect" 

3.  Where  the  property  has  been  expressly  deposited  with  him  Deposit, 
for  safe  custody.     The  innke»per,   however,  may  require,  as  a 
condition  of  his  liability,  that  the  guest  shall  fasten  and  seal  up 

his  property  in  a  box  or  other  receptacle. 

But  the  innkeeper  is  not  to  be  entitled  to  the  benefit  of  this  Posting  np 
Act  unless  he  puts  up  a  copy  of  section  1,  printed  in  plain  type,  section  1. 
in  a  conspicuous  part  of  his  entrance-hall,  and  he  had  better  take 
care  not  to  omit  material   parts  of  the  section,   or  play  other 

{k)  26  &  27  Vict.  c.  41. 


48  INNKEEPEBS. 

pranks  with  the  Act,  for  the  courts  have  shown  clearly  that  they 
will  not  allow  innkeepers  to  trifle  with  it.  The  landlord  of  the 
"  Old  Ship  "  at  Brighton  posted  up  what  purported  to  he  a  copy 
of  section  1.  But  through  some  mistake  the  word  "act"  was 
left  out,  so  that  the  sentence  ran  "wilful  default  or  neglect" 
instead  of  "  wilful  act,  default  or  neglect."  A  gentleman  stay- 
ing at  the  hotel  in  November,  1875,  had  his  watch  and  things 
stolen  during  the  night,  and  went  to  law  with  the  landlord  to  re- 
cover their  value.  The  defendant  paid  £30  into  court,  but  said 
that  the  Act  protected  him  against  any  further  claim.  But  it 
was  held  that,  as  he  had  not  posted  up  a  correct  copy  of  section 
1,  he  was  not  entitled  to  the  benefit  of  the  Act  (/).  "  We  have 
an  omission,"  said  Cockburn,  C.  J.,  "  which  is  far  beyond  a  mere 
clerical  error.  It  is  an  omission  of  a  substantial  part  of  the 
notice.  When  we  have  an  omission  of  a  material  and  really  sub- 
stantial part  of  the  notice  required  by  statute,  I  cannot  think  it 
a  copy  sufficient  to  satisfy  the  requirements  of  the  Act." 

It  may  be  mentioned  that  it  has  been  held  at  nisi  prim  fin  a 
case  from  Ryde,  where  the  real  question  appears  to  have  been 
whether  the  chambermaid's  allowing  a  stranger  to  go  up  stairs 
to  wash  his  hands  without  accompanying  him  was  an  act  of  neg- 
ligence) that  th".  word  "xti/fiil''  in  the  first  section  applies  only  to 
the  following  word  "act"  and  not  to  the  next  following  words 
"  default  or  neglect "  (m). 

Supposing  the  innkeeper  not  to  have  complied  with  the  condi- 
tions of  this  Act,  his  liability  remains  the  same  as  at  common 
law,  almost  his  only  defence  being  to  show  that  his  guest  has 
been  negligent.  The  question  of  the  guest's  negligence  must  in 
all  cases  depend  upon  the  surrounding  circumstances  (»).  If  he  has 
not  used  the  ordinary  care  which  may  reasonably  be  expected 
from  a  prudent  man,  he  cannot  make  the  innkeeper  responsible 
for  the  loss  of  his  goods.  In  Armistead  v.  Wilde  (o),  for  instance, 
there  had  been  an  ostentatious  display  of  bank  notes,  with  a 
good  deal  of  bragging,  and  the  guest  had  let  everybody  see  that 
he  put  the  notes  in  an  ill  secured  box.  "  These  facts,"  said 
Lord  Campbell,  C.J.,  "might  or  might  not  amount  to  negli- 
gence, but  they  were  evidence  of  it;  and  it  was  a  fair  question 
for  the  jury."  The  omission  by  the  guest  to  leave  valuable  arti- 
cles with  the  innkeeper,  or  to  fasten  his  bedroom  door  at  night, 
is  not  necessarily  negligence  (p).  It  may  or  may  not  be  accord- 
ing to  the  circumstances.  What  would  be  prudent  in  a  small 
hotel  in  a  small  town  might  be  the  extreme  of  imprudence  at  a 

(I)  Spice  v.  Bacon,  2  Ex.  Div.  v.    Markwell,  45  L.  T.,  N.  S., 

463.  649. 

(m)  Squire  v.  Wheeler,  16  L.         (o)  17  Q.  B.  261. 
T.  N.  S.  93.  (p)  Morgan  v.   Eavey,  6  H. 

(n)  Per  Lopes,  J.,  in  Herbert  &  N.  265. 


INNKEEPERS.  49 

large  hotel  in  a  city  like  Bristol,  where  probably  300  bedrooms 
are  occupied  by  people  of  all  sorts  (q).  See  also  the  cases  of 
Cashill  v.  Wright  (watch  and  money  stolen  from  bedroom),  6  E. 
&  B.  891,  and  Burgess  v.  Clements  (jewellery  stolen  from  private 
room  left  unlocked  at  an  Oxford  inn),  4  M.  &  S.  306. 

If  a  guest  refuses  to  pay  the  reckoning,  the  landlord  has  a  lien  Inn-keeper's 
on  the  luggage  and  belongings  which  he  brought  to  tbe  inn,  ^en- 
whether  they  are  the  man's  own  or  not,  and,  if  the  bill  is  not 
settled  in  six  weeks,  may  sell  them,  handing  back  any  surplus 
there  may  be  (r).  He  is  required  to  advertise  the  sale  a  month 
beforehand  in  a  London  and  local  newspaper.  In  the  recent  case 
of  Angus  v.  McLachlan  (s)  it  was  held  that  an  innkeeper  who  ac- 
cepts security  from  his  guest  for  the  payment  of  his  charges  does 
notthereby  waive  his  lien.  "As  I  understand  the  law.  "said  Kay, 
J.,  "it  is  not  the  mere  taking  of  asecurity  which  destroys  the  lien, 
but  there  must  be  something  in  the  facts  of  the  case,  or  in  the 
nature  of  the  security  taken,  which  is  inconsistent  with  the  ex- 
istence of  the  lien,  and  which  is  destructive  of  it.  In  this  case 
the  lien  is  within  the  provisions  of  41  &  42  Vict.  c.  38,  by  virtue 
of  which  the  innkeeper  not  only  has  a  passive  lien,  but  also  the 
active  right  to  sell  the  goods  upon  giving  the  notice  required  by 
the  Act.  Is  it  probable  that  he  would  have  giveh  up  this  active 
lien  ?  .  .  .  .  There  is  nothing  in  the  case  inconsistent  with  * 
the  continuance  of  the  lien  which  the  plaintiff  undoubtedly  had 
before  the  security  was  given."  It  was  also  held  in  this  case  that 
an  innkeeper  keeping  his  guest's  goods  under  his  lien  need  not 
use  more  care  about  their  custody  than  he  uses  as  to  his  own 
things  of  a  similar  kind.  An  innkeeper  may  not  detain  the  per- 
son of  his  guest  for  non-payment  of  his  bill. 


authority. 


It  was  said  in  Calye's  case  that,  if  the  landlord  had  sent  the  Sending 
horse  into  the  field  without  his  guest's  authority,  he  would  have  horse  to  pas- 
been  responsible.     Such  a  case  has  actually  occurred.     A  Bewd-      ™  without 
ley  innkeeper,  whose  coach-house  was  full,  put  a  guest's  gig  into 
the  adjoining  street  without  saying  a  word  to  him  on  the  subject. 
The  gig  was  stolen,  and  the  owner  sued  the  innkeeper,  who  was 
held  liable  on  the  ground  that  he  had  chosen  to  treat  the  street 
as  part  of  the  inn  (t). 

An  action  for  the  loss  of  goods  at  a  hotel  must  be  brought 
against  the  person  really  carrying  on  the  business,  not  against  a 
paid  manager,  although  the  justices'  licence  may  have  been 
granted  in  his  name  (u). 

(q)  Per  Montagu  Smith,  J.,  in  Cowell  v.  Simpson,  16  Ves.  275. 

Oppenheim  v.  White  Lion  Co.,  (0  Jones   v.  Tyler,    1  Ad.  & 

L.  H.  6  C.  P.  515.  E.  522. 

(r)  41  &  42  Vict.  c.  38.  (u)  Dixon  t).  Birch,     L.  E.  8 

(s)  23  Ch.  Div.  330,  and  see  Ex.  135. 


50  INNKEEPERS. 

Definition  of       ^n  *nn  ^as  been  defined  as  "a  house  where  the  traveller  isfur- 
inn.  nished  with  everything  he  has  occasion  for  while  on  his  way"  (a:). 

"Whoe'er  has  travell'd  life's  dull  round, 
Where'er  his  stages  may  have  been, 
May  sigh  to  think  he  still  has  found 
The  warmest  welcome  at  an  inn." 

Per  Shenstone,  C.  J. 

A  coffee  house  where  there  are  beds  may  be  such  a  place;  but  not 
a  lodging  or  boarding  house:  and  it  has  lately  been  decided,  in  a 
case  where  a  man  had  insisted  on  entering  accompanied  by  an 
offensive  dog,  that  a  refreshment  bar  attached  to  a  hotel,  under 
the  same  roof  but  with  a  separate  entrance,  is  not  {y).  Any 
traveller  (not  being  a  thief  or  prostitute,  or  constable  on  duty,  or 
having  a  contagious  disease,  or  being  some  other  essentially  ob- 
jectionable person)  who  is  ready  to  pay  for  his  accommodation, 
and  conducts  himself  properly,  can  claim  admission  into  an  inn, 
if  there  is  room,  at  any  hour  of  the  day  or  night;  and  if  the 
landlord  refuses  it,  an  action  lies  against  him,  or  he  may  be  in- 
dicted (z).  The  mere  purchase  of  temporary  refreshment,  or  the 
putting  up  of  his  horse,  makes  a  man  a  guest,  so  as  to  raise  the 
innkeeper's  responsibility  (a).  But  it  has  been  held  that  a  tem- 
porary waiter  at  a  ball  given  at  an  inn  is  not  a  guest,  and  cannot 
recover  from  the  landlord  the  value  of  an  overcoat  heartlessly 
stolen  while  he  is  discharging  his  important  duties  (b). 
Stranss's  In  the  recent  case  of  Strauss  v.  The  County  Hotel  Company  (t) 

case.  the  plaintiff  had  arrived  at  Carlisle  and  given  his  luggage  to  the 

hotel  porter  with  a  view  to  staying  at  the  hotel,  when  an  impor- 
tant telegram  induced  him  to  alter  his  intentions.  He  told  the 
porter  to  lock  up  the  luggage,  which  was  done:  but  afterwards 
some  of  the  property  was  found  to  be  missing.  It  was  held  that 
at  the  time  of  the  loss  of  the  plaintiff's  goods  there  was  no  evi- 
dence of  the  relation  of  landlord  and  guest,  and  therefore  that 
the  defendants  were  not  responsible.  The  liability  of  an  inn- 
keeper continues  during  the  temporary  absence  of  his  guest  (d) ; 
but  if  a  host  invites  one  to  supper,  and,  the  night  beingjar  spent, 
invites  him  to  stay  all  night,  if  he  is  afterwards  robbed,  yet  shall 
not  the  host  be  charged  (as  an  innkeeper),  for  this  guest  was  no 
traveller  (e). 

(x)  Thompson  v.  Lacy,  3  B.  &  269,  and  R.  v.  Ivens,  7  C.  &  P. 

Aid.  283,  where   it  was  vigor-  213. 

ously  contended   that  the  de-  (a)  Bennett  v.  Mellor,  5  T.  R. 

fendant's  establishment  was  not  274,  and  York  v.  Grindstone,  1 

an  inn,  because  it  was  not  fre-  Salk.  388. 

quented   by  stage  coaches  and  (6)  Carter  v.  Hobbs,  12  Mich, 

waggons  from  the  country,  and  52. 

•  had  no  stables.  (c)  12  Q.  B.  D.  27. 

(y)  R.  v.  Rymer,  2  Q.  B.  D.  (d)  Day  v.  Bather,  2  H.  &  C. 

136.  14. 

(z)  Fell  v.  Knight,  8  M.  &  W.  (e)  Bac.  Abr.  Inns.  c.  5. 


"  PROPER    VICE."  51 

"Proper  Vice." 

BLOWER  v.  GREAT  WESTERN  RAILWAY  CO.  [22.] 

[L.  R.  7  C.  P.  655  (1872).] 

Mr.  Blower  had  a  bullock  which  he  wanted  to  send  by 
railway  from  a  small  station  near  Monmouth  to  North- 
ampton. The  beast  was  duly  loaded  to  Mr.  Blower's 
satisfaction  in  one  of  the  Great  Western  Railway  Com- 
pany's trucks,  but  on  the  journey  it  managed  to  escape, 
and  got  killed  on  the  line.  Admitting  that  the  company 
had  not  been  at  all  negligent  in  the  carrying  of  the  ani- 
mal, were  they  not  liable  as  common  carriers  ?  No;  for 
the  disaster  was  due  to  the  "inherent  vice  "  of  the  sub- 
ject of  bailment. 

The  effect  of  this  case  is  practically  to  introduce  a  third  excep-  Third  ex- 
tion  to  the  rule  that  common  carriers  are  insurers.     They  are  to  ception. 
be  excused  not  only  when  the  loss  has  been  occasioned  by  the 
act  of  God  or  the  King's  enemies,  but  also  if  it  has  happened 
through  the  inherent  defect  of  the  thing  carried. 

The  leading  case  was  followed  in  Nugent  v.  Smith  (/),  where 

a  horse,  while  being  conveyed  by  sea  from  London  to  Aberdeen. 

received  fatal  injuries  through  getting  frightened  at  a  storm.     So, 

too,  a  common  carrier  is  not  responsible  for  the  deterioration  of      ..  , 

'  1  articles, 

perishable  articles,  or  for  the  evaporation  or  leakage  of  liquids. 

But  in  all  such  cases  the  carrier  will  be  liable  for  his  negligence.  Gill's  case. 
About  ten  years  ago  a  man  sent  a  cow  by  train  from  Doncasterto 
Sheffield.  When  it  got  to  Sheffield  a  porter  rather  unadvisedly 
released  it,  and  it  ran  into  a  tunnel  and  was  killed.  The  restive- 
ness  and  stupidity  of  the  cow  was  undoubtedly  the  real  cause  of 
its  death,  but  the  porter  ought  not  to  have  been  in  such  a  hurry 
to  let  it  out ;  and  on  this  latter  ground  his  masters  were  held 
responsible  (g). 

A  carrier,  again,  will  not  be  responsible  for  injury  happening  Bad  packing. 
through  the  improper  packing  of  the  subject  of  bailment ;  at  all 
events,  if  he  was  not  aware  that  it  was  packed  improperly.  Thus 
it  has  been  held  that  a  railway  company  cannot  be  charged  with 
negligence  if  a  greyhound  escapes  through  the  insufficiency  of  a 
chain  and  collar  supplied  by  the  owner  and  appearing  to  be  good 
enough  (h). 

(/)  1  C.  P.  D.  423.  (A)  Richardson  v.  N.  E.  Ry. 

(g)  Gill  v.  M.  S.  &  L.  Ry.  Co.,     Co.,  L.  R.  7  C.  P.  75. 
L.  R.  8  Q.  B.  186. 


52  "  PROPER   VICE.1' 

Dangerous  A  person  who  delivers  a  dangerous  substance  to  a  common  car- 

goods,  rier  without  giving  him  any  information  about  it  is  responsible 

for  all  the  evil  consequences  arising  therefrom  (i).     It  has  been 
expressly  provided  by  Act  of  Parliament  (k)  that  a  carrier  is  not 
bound  to  receive  such  things.     But  a  carrier  cannot  refuse  to  carry 
a  parcel  merely  on  the  ground  that  he  is  not  informed  of  its  con- 
tents (I), 
Common  car-      It  is  to  be  observed  that  common  carriers  are  not  necessarily 
liers  not  gen-  general  carriers.     To  ascertain  the  nature  and  extent  of  a  carrier's 
era    earners.  kusjness  reference  must  be  made  to  his  public   professions  and 
representations  (m). 

A  common  carrier  is  bound  at  common  law  to  receive  and  carry 
all  goods  reasonably  offered  to  him  and  for  the  carrying  of  which 
the  person  bringing  the  goods  is  ready  to  pay  (n).  In  the  ab- 
sence of  a  special  contract,  he  must  deliver  within  a  time  that  is 
reasonable,  regard  being  had  to  all  the  cixcunistances  (o).  Pro- 
vided he  carry  by  a  reasonable  route,  he  is  not  bound  to  carry  by 
the  shortest,  even  though  empowered  by  statute  to  charge  a  mile- 
age rate  for  carriage  (p), 


Special  Contracts  with  Carriers. 

[23.]      PEEK  r.  NORTH  STAFFORDSHIRE  RAILWAY  CO. 

[10  H.  L.  C.  443  (1863).] 

Mr.  Peek,  of  Stoke-upon-Trent,  wanted  to  send  some 
marble  chimney  pieces  from  there  to  London,  and  to  get 
it  done  as  cheaply  as  possible.  With  that  view  he  opened 
negotiations  with  an  agent  of  the  North  Staffordshire 
Railway  Company.  The  agent  said  the  company  would 
not  be  responsible  for  damage  to  the  chimney-pieces  Un- 
less the  value  was  declared,  and  they  were  insured  at  the 

(?)  Farrant  v.  Barnes,  11  C.  B.,  (m)  Johnson  v.  Midland  Rly. 

N.  S.,  553,  which  was  the  case  Co..  4  Exch.  367;  and  Oxladev. 

of  a  carboy  of  nitric  acid  burst-  N.  E.  By.  Co.,  15  C.  B.,  N.  S. 

ing    while  being  carried  from  680. 

London  to  Croydon  and  injuring  (n)  Pickford  v.  Grand  Junct. 

the  plaintiff,  "and  see  Brass  v.  Ry.  Co.,  8  M.  &  W.  372. 

Maitland,  6  E.  &B.470;andL.  (o)  Taylor  v.  G.  N.  Ry.  Co., 

J.  26  Q.  B.  49.  L.  R.  1  C.  P.  385. 

(Jfc)  29  &  30  Vict.  c.  69.  (p)  Myers  v.  L.  &  S.  W.  Ry. 

(0  Crouch  v.  L.  &  N.  W.  Rly.  Co.,  L.  R.  5  C.  P.  1. 
Co.,  14  C.  B.  255. 


SPECIAL    CONTRACTS    WITH    CARRIERS.  53 

rate  of  10  per  cent,  on  the  declared  value.  This  rate 
Peek  considered  too  high,  and  finally  he  sent  a  note  to 
the  agent  requesting  him  to  send  the  chimney-pieces 
''not  insured." 

The  marble  received  injury  on  the  journey  through 
exposure  to  rain  and  wet,  and  Peek  now  sought  to  make 
the  company  responsible  for  the  whole  of  the  damage 
done. 

The  two  chief  questions  were — 

1.  Whether  the  condition  was  "just  and  reasonable;" 

2.  Whether  there  was  a  "special  contract  signed;" 
and  both  these  questions  were  decided  in  the  plaintiff's 
favour. 

Before   1830  common  carriers  were  accustomed  to  get  rid  of  Public 
their  common  law  liability  as  insurers  of  the  goods  committed  to  no"Ce8. 
them  by  posting  up  notices.     If  it  could  be  shown  that  the  notice 
had  come  to  the  knowledge  of  the  customer,  he  was  presumed  to 
have  assented  to  its  terms,  and  the  carrier  was  only  liable  in  the 
case  of  wilful  misfeasance  or  gross  negligence. 

The  efficacy  of  these  public  notices  was  destroyed  in  1830  by  the  Land  Car- 
Land  Carriers  Act  (q) ;  but  the  Act  reserved  the  carrier's  right  to  riers  Act- 
make  a  special  contract  with  his  customer.     The  courts,  however, 
were  in  many  instances  very  hard  on  the  customers,  holding,  for 
examine,  that  a  notice  put  on  the  receipt  given  to  a  person  deliv- 
ering goods  to  be  carried  amounted  to  a  special  contract,  and  in 
1854  further  legislation  was  deemed  to  be  necessary.     In  that  year  Railway  and 
was  passed  the  Railway  and  Canal  Traffic  Act  (»•),  which  still  per-  Canal  Traffic 
mits  the  making  of  special  contracts,  but  provides  that  no  one  Act- 
shall  be  bound  by  any  such  contract  with  a  railway  or  canal  com- 
pany (1)  unless  he  (or  his  agent)  has  signed  it  (s),  and  (2)  it  is  "just 
and  reasonable.1' 

31  &  32  Vict.  c.  119,  s.  14,  however,  gives  public  notices  a  cer-  Notices  by 
tain  amount  oi  validity  in  the  case  of  land  and  sea  carriers.    The  land  and  sea 
condition  sought  to  be  enforced  must  be  published  in  a  conspicu-  carriers, 
ous  manner  in  the  office  where  the  through  booking  is  effected, 
and  must  also  be  printed  in  a  legible  manner  on  the  receipt  or 
freight  note  given  by  the  company. 

Whether  a  condition  is  "just  and  reasonable."  under  section  7  "Just  and 
of  the  Railway  and  Canal  Traffic  Act  is  a  question  for  the  judge  reasonable." 
at  the  trial,  subject,  of  course,  to  the  review  of  the  divisional  and 
higher  courts.     A  condition  which  states  that  the  company  will 


(q)  11  Geo.  IV.  &  1  Will.  IV.  would  be  binding  on  the  com- 

c.  68.  pany.     Baxendale  v.  G.  E.  Ry. 

(r)  17  &  18  Vict.  c.  31.  Co.,  L.  R.  4  Q.  B.  224. 
(s)  But  the  unsigned  contract 


54 


SPECIAL    CONTRACTS    WITH    CARRIERS. 


Conditions 
held  bad. 


Alternative 
rates. 


not  be  responsible  for  damage  to  horses,  "  however  caused ,"  is  unrea- 
sonable and  bad  (t).  So  is  one  which  disclaims  responsibility  for 
a  parcel  insufficiently  packed.  So,  too,  in  the  recent  case  of  Ash- 
endan  v.  L.  B.  &  S.  C.  Ry.  Co.  (w)  (where  an  Italian  greyhound 
got  lost  on  its  way  from  Brighton  to  Rochester)  a  condition  that 
a  railway  company  would  not  be  liable  ' Hn  any  case7'  for  loss  of,  or 
damage  to,  a  horse  or  dog  above  certain  specified  values,  unless  the 
value  was  declared,  was  held  bad.  But  "if  an  owner  of  goods,  to 
whom  the  full  protection  of  the  Railway  and  Canal  Traffic  Act  is 
offered  on  reasonable  terms,  deliberately  elects,  for  the  valuable 
consideration  of  a  substantial  reduction  in  the  cost  of  carriage,  to 
agree  to  release  the  carriers  from  certain  liabilities,  he  cannot  es- 
cape from  the  contract  so  entered  into,  unless  he  can  show  that 
lie  has  been  so  far  overreached  in  the  transaction  as  to  make  the 
agreement  void  at  common  law,  or  that  the  offer  of  the  alternative 
is  a  lraud  upon  the  statute"  (y).  In  the  recent  case  of  Brown  v. 
The  Grimsby  M.  S.  &  L.  Ry.  Co,  (z)  a  Grimsby  fish  merchant,  in  consideration 
fish  mer-  0f  getting  his  fish  taken  to  London  at  a  cheaper  rate,  signed  a 

c  an  s  case.  con^rac^  by  which  the  rail w&y  company  were  to  be  relieved  "from 
all  liability  for  loss  or  damage  by  delay  in  transit,  or  from  what- 
ever other  cause  arising."  It  was  held  in  the  House  of  Lords 
(reversing  the  decision  of  the  Court  of  Appeal)  that  the  contract 
was  reasonable,  and  relieved  the  company  from  liability  for  loss 
through  delay  in  transit  caused  by  the  negligence  of  their  servants. 
"The  question,"  said  Lord  Watson,  "as  to  what  constitutes  a 
reasonable  condition  is  not  a  question  which  judges  can  decide, 
as  against  their  successors,  by  anticipation ;  it  is  a  question  of  fact 
in  each  case,  depending  upon  the  discretion  of  the  judge  who  is 
dealing  with  it,  and,  according  to  my  view,  not  of  law,  and  must 
be  judged  of  according  to  the  circumstances  in  each  case.  No 
doubt  there  are  very  many  valuable  suggestions  in  the  case  of 
Peek  v.  The  North  Staffordshire  Railway  Company.  But  we  are  not 
dealing  with  a  case  in  its  circumstances  similar  to  that,  accord- 
ing to  my  apprehension  of  the  facts  of  it,  because  there  it  was 
held  that  the  company  had  really  proposed  to  exact  a  rate  so  high, 
not  for  the  honest  and  bond  fide  purpose  of  giving  an  alternative 
to  the  trader,  but  solely  with  the  view  of  giving  no  alternative 
and  compelling  him  to  adopt  one  rate  practically  in  preference  to 
another.  I  cannot  see  in  the  present  case  the  least  trace  of  that 
compulsion.     I  cannot  find  anything  in  the  character  of  this  case 


(t)  M'Manusu.  Lanc.&  Yorks. 
Ry.  Co.,  4  H.  &  N.  327. 

(u)  Simons  v.  G.  W.  Ry.  Co., 
18  C.  B.  805. 

(x)  5  Ex.  Div.  190. 

(if)  Per  Fitzgibbon.  L.J.,   in 

M'Nally  v.  Lane.  &  Yorks.  Ry. 

'Co.,  L.  R.  (Ir.)  8  Coram.   Law, 

1)3;  and  see  Ruddy  v.  Midi.  G. 

a 


W.  Ry.  Co.,  ib.  224. 

(z)  53  L.  J.  Q.  B.  124;  and  see 
the  recent  case  of  Dickson  v.  G. 
N.  Ry.  Co.,  34  W.  R.  457,  where 
a  notice  by  a  railway  company 
exempting  themselves  from  lia- 
bility for  valuable  dogs  was  held 
just  and  reasonable. 


SPECIAL    CONTRACTS    WITH    CARRIERS.  55 

to  suggest  to  my  mind  that  the  condition  is  unreasonahle. " 
"Really,"  said  Lord  Bramwell,  with  characteristic  straightfor- 
wardness, "it  is  difficult  for  me  to  express  the  opinion  which  I 
entertain  upon  this  question  with  a  sufficient  apparent  respect  for 
the  opinion  of  those  who  have  thought  differently — namely,  tho 
learned  judges  in  the  court  below.  ...  I  must  say  that  I 
really  do  think  this  is  about  the  plainest  case  that  ever  came  before 
ymir  lordships'  House."  Certainly  no  one  who  reads  the  judgments 
delivered  in  the  House  of  Lords  can  doubt  for  a  moment  that  the 
Court  of  Appeal  went  wrong  in  the  case  of  the  Grimbsy  fish  mer- 
chant. The  reasons  given  by  the  House  of  Lprds  were  precisely 
those  which  had  already  been  given  by  Mathew  and  Cave,  JJ.,  in 
the  Divisional  Court,  and  one  would  think  they  were  good  enough 
to  satisfy  the  appetite  of  any  litigant. 

Amongst  conditions  that  have  been  held  to  be  "just  and  reason-  Conditions 
able,"  may  be  mentioned  one,  that  a  company  shall  not  be  liable  Qehi  good. 
for  loss  of  market  or  other  claim  arising  from  delay  or  detention  of 
any  train  (a);  another,  placing  the  carriage  of  such  perishable  goods 
as  fish  or  fruit  under  special  regulations  (b);  and  a  third,  exempting 
the  company  from  liability  for  loss  or  damage  to  live  stock  from  suffo- 
cation, etc.  (c). 

In  the  recent  case  of  Goldsmith  v.  The  Great  Eastern  Railway  Goldsmith'* 
Company  (d),  clover  seed  was  carried  by  the  defendants  "solely  case, 
at  the  risk  of  the  sender,  with  the  exception  that  the  company 
shall  be  responsible  for  any  wilful  act  or  wilful  default  of  the 
company."  The  goods  were  misdelivered,  so  that  they  did  not 
arrive  at  their  proper  destination  till  after  a  fortnight's  delay. 
It  was  held  that  there  was  nothing  in  the  special  contract  to  free 
the  defendants  from  their  liability  as  carriers. 

In  another  recent  case  (e)  a  man  delivered  some  cattle  to  a  railway  Gordon's 
company  to  be  taken  from  Waterford  to  Gloucester,  and  prepaid  case, 
the  carriage.  The  clerk,  however,  stupidly  forgot  to  put  "car- 
riage paid"  on  the  consignment  note,  and  the  consequence  was 
that  delivery  was  refused  at  Gloucester  till  the  mistake  was  recti- 
fied, and  the  cattle  had  been  for  some  time  exposed  to  the  weather. 
According  to  the  terms  of  the  contract  of  carriage,  the  company, 
in  consideration  of  an  alternative  reduced  rate,  were  "not  to  be 
liable  in  respect  of  any  loss  or  detention  of,  or  injury  to,  the  said 
animals,  or  any  of  them,  in  the  receiving,  forwarding,  or  delivery, 
thereof,  except  upon  proof  that  such  loss,  detention,  or  injury 
arose  from  the  wilful  misconduct  of  the  company  or  its  servants." 

(a)  White  v.  G.  W.  Ry.  Co.,  2  Ry.  Co.,  1  H.  &  N.  392. 
C.  B.,  N.  S.  7.  (d)  44  L.  T.,  N.  S.,  181. 

(b)  Beal  v.  South  Devon  Ry.  (e)  Gordon  v.  G.  W.  Ry.  Co., 
Co.,  5  H.  &  N.  875.  8  Q.  B.  D.  44. 

(c)  Pardington  v.  South  Wales 


•56  SPECIAL    CONTRACTS    WITH    CARRIERS. 

It  was  held  that  the  withholding  of  the  cattle  under  a  groundless 
claim  to  retain  them  was  not  "detention  "  within  the  condition, 
and  that  the  company  were  therefore  liable.  The  court  also  were 
inclined  to  think  that  the  company  had  been  guilty  of  "  wilful 
misconduct,"  but  it  was  unnecessary  to  decide  that  point. 

The  still  more  recent  case  of  Stevens  v.  G.  W.  Ry.  Co.  (/)  was 
a  case  of  misdelivery  of  goods  consigned  at  owner's  risk  rate  with 
protection  against  "wilful  misconduct  on  the  part  of  the  com- 
pany's servants."  It  was  held  that  the  mere  misdelivery  was 
not  evidence  of  wilful  misconduct;  the  plaintiff  must  go  further 
and  show  how  it  occurred. 

The  7th  section  of  the  Eailway  and  Canal  Traffic  Act  has  no 
application  to  goods  left  at  a  railway  cloak  room  (g),  nor  to  con- 
tracts by  railway  companies  to  carry  over  other  lines  (h);  but  it 
extends  to  their  sea  traffic  (?'). 


Land  Carriers  Act. 


[24.]         MORRITT  v.  NORTHEASTERN  RAILWAY  CO. 
[1  Q.  B.  D.  302  (1876).] 

Mr.  Morritt  was  a  passenger  by  the  defendant's  railway 
from  York  to  Darlington,  and  had  with  him  two  water- 
colour  drawings  tied  by  a  rope  face  to  face.  They  were 
above  the  value  of  £10,  but  he  made  no  declaration  of 
their  value.  He  banded  them  to  the  guard,  asking  him  to 
take  care  of  them,  and  saw  them  labelled  "Darlington." 
When  the  train  reached  Darlington,  Morritt  got  out,  took 
a  fresh  ticket  to  Barnard  Castle,  and  told  the  porter  to  see 
that  the  drawings  were  taken  out  and  put  into  the  Barnard 
*  Castle  train.  The  drawings,  however,  were  not  taken  out, 
but  were  carried  on  to  Durham,  and  when  Morritt  saw 

{f)  52  L.  T.,  N.  S.  324,  distin-  (h)  Zunz  v.  S.  E.Ry.  Co.,  L. 

gui'shing  Hoare  v.  G. W.  Ry.  Co.,  R.  4  Q.  B.  359. 

37  L.  T.,  N.  S.  186.  («)  31  &  32  Vict.  c.  119;  and 

(g)  Van  Toll  v.  S.  E.  Ry.  Co.,  see  Cohen  v.  S.  E.  Ry.  Co.,  1  Ex. 

31  L.  J.  C.  P.  241  Div.  217 


LAND    CARRIERS    ACT.  57 

them  again  they  had  been  greatly  injured,  "  holes  hav- 
ing been  made  in  them." 

The  question  was,  whether  the  Carriers  Act  applied 
to  the  case  of  goods  negligently  carried  beyond  the  point 
of  destination  so  as  to  protect  the  railway  company, 
and  it  was  held  that  it  did. 

In  the  good  old  times  it  was  the  frequent  practice  of  "bankers  "Bankers 
and  others"  to  send  "articles  of  great  value  in  small  compass,"  and  others." 
such  as  cases  of  jewellery,  by  the  public  conveyance  without  tell- 
ing the  carrier  what  he  was  carrying,  and  then  afterwards,  if  the 
things  were  lost,  to  come  down  on  the  unfortunate  man  for  com- 
pensation. 

To  protect  him  against  this  manifest  unfairness,  the  Land  Car-  Act  of  1830. 
riers  Act  of  1S30  (k)  was  passed.     Its  object  is  twofold  : — 

(1.)  The  carrier  is  to  be  informed  when  he  is  carrying  anything 
particularly  valuable,  so  that  he  may  give  it  a  corresponding 
amount  of  protection. 

(2.)  In  recognition  of  the  extra  responsibility  and  trouble,  he 
is  to  have  extra  jjay. 

The  Carriers  Act,  it  is  to  be  observed,  applies  only  to  carriers  by 
land.  But  when  there  is  one  entire  contract  to  carry  partly  by 
land  and  partly  by  sea,  the  contract  is  divisible,  and  during  the 
land  journey  the  carrier  is  within  the  protection  of  the  Act  (I). 

Put  shortly,  the  1st  section  of  the  Act  provides  that  no  land 
carrier  is  to  be  liable  for  the  loss  of,  or  injury  to,  any  one  of  cer- 
tain specified  "articlesof  great  value  in  small  compass"  (m)  con-  "Articles  of 
tained  in  any  parcel  or  package  when  the  value  of  the.  article  exceeds  great  value 
£10,  unless  the  person  delivering  it  to  the  carrier  declares  its  value  in  8ma" 
and  agrees  to  pay  more  for  its  carriage  ;  and  the  construction  placed 
on  the  section  is  that  it  protects  the  carrier  in  all  cases  of  loss  or 
injury  by  accident  or  negligence,  but  does  not  protect  him  against 
the  consequences  of  his  toilful  misfeasance  (n),  nor  against  delay 
without  loss  (o). 

The  leading  case  was  followed  in  the  recent  case  of  Millen  v.  Christmas 
Brasch  (p).     The  defendants  in  the  case  were  carriers  from  Lon-  cards  mis- 
don  to  Rome,  and  received  the  plaintiff's  trunk  containing  silks  ggaiolHns 
and   sealskins  worth   £40,   no  value   being  declared,   for  Italy. 

(k)  11   Geo.   IV.  and  1  Will,  within    the  section.     Owen   v. 

IV.  c.  68.  Burnett,  2  G.  &  M.  353. 

(I)  La  Conteur  v.  L.  &  S.  W.  (»)  Hinton  v.  Dibbin,  2  Q.  B. 

Ry.  Co.,  L.  R.  1  Q.  B.  54.  646. 

(m)  The  words  quoted  from  (o)  Hearn  v.  L.  &  S.  W.  Ry. 

the  preamble,  however,  are  not  Co.,  10  Ex.  793. 

of  any  real  importance.  A  large  (p)  31  W.  R.  190. 
looking-glass,    for  instance,    is 


58 


LAND    CARRIERS    ACT. 


Meaning  of 
"value." 


Somehow  they  made  a  mistake  between  the  plaintiff's  trunk  and 
a  case  of  Christmas  cards  consigned  to  somebody  at  New  York, 
sending  the  silks  and  sealskins  to  America  and  the  Christmas 
cards  to  Italy.  In  their  defence,  the  carriers  claimed  the  protec- 
tion of  the  Carriers  Act ;  but  the  plaintiff  contended  that  they 
were  not  entitled  to  it,  because  they  were  wrongdoers  in  having 
sent  the  trunk  on  the  wrong  road  and  not  on  the  journey  contract- 
ed for.  To  this  objection,  however,  Morrill  v.  The  North  Eastern 
Railway  Co.,  was  held  to  be  a  conclusive  answer.  It  was  also  held 
in  Millen  v.  Brasch  that  the  carrier  was  not  deprived  of  the  pro- 
tection of  the  Act  by  the  fact  that  the  loss  of  the  goods  was  tem- 
porary and  not  permanent ;  and  that  the  plaintiff  was  not  enti- 
tled— on  this  point  the  Court  of  Appeal  reversing  the  decision  of 
the  court  below — to  recover  as  damages  the  cost  of  the  repurchase 
of  other  articles  at  Rome  at  enhanced  prices  in  place  of  those  tem- 
porarily lost. 

The  word  "  value"  in  the  1st  section  means  the  value  to  the 
consignor,  so  that,  if  he  was  selling  the  articles  to  Jones  for  £12, 
it  is  of  no  consequence  that  he  had  bought  them  the  day  before 
from  Brown  for  £9  (q).  "  He  may  have  had  them  as  a  gift,"  re- 
marked Lord  Coleridge,  C.J.,  "and  is  the  value  nothing  to  him 
because  he  has  really  paid  nothing  for  them?" 

The  part  of  the  section  which  has  been  the  most  litigated,  is  the 
part  specifying  the  "articles  of  great  value  in  small  compass." 
Painted  carpet  designs,  it  has  been  held,  are  not  "  paintings  "  (r). 
Hat  bodies  made  partly  of  fur  and  partly  of  wool  are  not  "furs"  (s). 
German  silver  fuzee  boxes  are  not  "trinkets"  (t).  But  a  chronome- 
ter is  a  "time-piece"  (w).  The  word"  writings,"  it  has  been  held 
in  a  county  court  case  (.r)  will  include  the  manuscript  of  an  au- 
thor. In  "  pictures  "  frames  are  included  (?/).  t  A  packed  icaggon 
sent  for  carriage  by  a  railway  company,  containing  articles  of  the 
specified  kind   and  put   on  a  truck,  is  a  " parcel   or   package" 

within  the  section  (z). 

O 
The  declaration  of  the  value  and  nature  of  the  goods  must  be 

made  at  the  time  of  delivery,  whether  that  be  at  the  carrier^  of- 
fice, at  the  sender's  house,  on  the  road,  or  elsewhere  (a\. 

Thefts  by  Sect.  8  of  the  Carriers  Act  provides  that  the  carrier  shall  be  re- 
carriers'  ser-  sponsible  for  the  felonious  acts  of  his  servants,  notwithstanding 
vants.  


Decisions  as 
to  articles 
enumerated. 


'•4 

o 


«-3-i 
o  c 

?•  o 

fc-« 

o 


(q)  Blankensee  v.  L.  &  N.  W. 
Ry.  Co.,45L.  T.,  N.  S.  761. 

(r)  Woodward  v.  L.  &  N.  W. 
Ry.  Co.,  3  Ex.  Div.  121. 

(s)  Mayhew  v.  Nelson,  6  C.  & 
P.  58. 

(t)  Bernstein  v.  Baxendale,  6 
C.  B.,  N.  S.  251. 

(«)  Le  Conteur  v.  L.  &  S.  W. 


Ry.  Co.,  supra. 

(x)  Lawson  v.  L.  &  S.  W.  Ry. 
Co.,  Law  Times,  June  24,   1882. 

(y)  Henderson  v.  L.  &  S.  W. 
Ry.  Co.,  L.  R.  5  Ex.  90. 

(z)  Whaite  v.  Lane.  &Yorks. 
Ry.  Co.,  L.  R.  9  Ex.  67. 

(a)  Baxendale  v.  Hart,  6  Ex. 
769. 


LAND  CARRIERS  ACT — PASSENGERS  LUGGAGE.  59 

that  the  customer  may  not  have  declared  and  insured  his  goods. 
The  section  has  been  so  construed  that,  while,  on  the  one  hand, 
the  customer  need  not  give  evidence  that  would  fix  any  particu- 
lar servant  with  the  theft  (b),  on  the  other,  it  is  not  sufficient  for 
him  merely  to  show  that  nobody  had  a  better  opportunity  of 
stealing  his  things  than  the  company'sservants  (e).  The  servant 
of  a  carrier  employed  by  a  railway  company  is  a  servant  of  the 
company  for  the  purposes  of  the  section  (rf),  but  the  company 
may  show  that  the  thief  falsely  represented  himself  to  be  the 
carrier's  servant  (e). 

The  7th  section  of  the  Railway  and  Canal  Traffic  Act  (/)  pro-  Horses, 
vides  that  no  greater  damages  than  £50  for  a  horse,  £15  for  any  sheep,  pigs, 
neat  cattle  per  head,  and  £2  for  a  sheep  or  pig,  shall  be  recovered 
unless  a  higher  value  has  been  previously  declared. 


Passengers''  Luggage. 


BERGHEIM  v.  GREAT   EASTERN  RAILWAY  CO.      [25.] 
[3  C.  P.  D.  221  (1878).] 

Mr.  Bergheim  was  a  passenger  from  Shoreditch  to 
Yarmouth.  When  he  arrived  at  the  Shoreditch  station 
he  found  he  had  plenty  of  time,and  so  he  decided  to  go  to 
the  refreshment  room  and  get  some  lunch.  First,  how- 
ever, he  took  his  ticket,  and  made  the  acquaintance  of 
a  porter  named  Bishop,  into  whose  care  he  committed 
his  luggage,  including  a  certain  dressing-bag.  Bishop 
said  it  would  be  all  right,  and  went,  off  with  the  lug- 
gage. He  placed  it  on  the  seat  of  a  first-class  com- 
partment, and  locked  it  up,  but  when  Mr.  Bergheim 
went  to  his  carriage,  the  bag  was  missing,  and  was 
never  afterwards  found.  Mr.  Bergheim  now  sought  to 
make  the  company  responsible  for  the  loss  of  his  dress- 
ing-bag.    It  was  clear  that  the  compartment,  and  not 

(b)  Vaughton  v.  L.  &  N.  W.     Co.,  2  Ex.  415. 

Ry.  Co.,  L.  R.  9  Ex.  93.  (e)  Way  v.  G.E.  Ry.  Co.,  1 

(c)  McQueen  v.  G.  W.  Ry.Co.,     Q.  B.  D.  692. 

L.  R.  10  Q.  B.  569.  (/)  17  &  18  Vict.  c.  31. 

(d)  Machu.  v.  L.  &  S.  W.  Ry. 


m 


PASSENGERS     LUGGAGE. 


Personal 
luggage, 
what  is. 


the  luggage-van,  was  the  proper  place  for  such  a  bag, 
and  that  there  had  been  no  negligence  on  either  side. 
The  question,  therefore,  was  whether  the  company  were 
liable  as  common-carriers,  in  respect  of  the  bag;  and 
it  was  held  that  they  were  not. 

The  reason  why,  in  the  ahsence  of  negligence,  a  railway  com- 
pany is  not  to  be  held  responsible  for  the  loss  of  luggage  carriec 
in  the  traveller's  own  compartment  is,  that  over  such  luggage  he 
is  supposed  to  retain  control,  and  not  to  have  entirely  confided  it 
to  the  care  of  the  company  (g). 

In  respect  of  luggage  carried  in  the  van,  railway  companies  are 
insurers.  Such  luggage,  however,  must  not  be  merchandise,  but 
simply  the  personal  luggage  of  the  passenger.  So  far  as  a  rule  can 
be  extracted  from  a  number  of  conflicting  decisions,  by  "personal 
luggage"  is  meant  whatever  the  traveller  taken  with  him  for  his  per- 
sonal use  and  convenience,  according  to  the  habits  and  wants  of  his 
class,  either  with  reference  to  the  immediate  necessities,  or  to  the  irfli- 
mate  purpose,  of  his  journey  (/<).  About  most  of  the  things  that 
sensible  people  are  in  the  habit  of  taking  with  them  on  journeys 
there  can,  of  course,  be  no  dispute.  But  the  bedding  which  a  man 
is  carrying' with  a  view  to  the  time  when  he  shall  have  provided 
himself  with  a  home  (/),  the  sketches  of  an  artist  (fc),  the  title- 
deeds  of  a  client  which  a  solicitor  is  taking  to  produce  at  a  trial  (7), 
and  a  toy  rocking-horse  (!)  (m),  have  been  held  not  to  be  personal 
luggage.  An  eminent  county  court  judge  has  held  that  a  ham- 
per of  fowls,  apples,  and  vegetables,  intended  as  a  present  to  a  friend, 
is  personal  language  (n) ;  but  the  decision  appears  to  be  hardly 
consistent  with  the  authorities. 

If  the  company  carry  goods  without  objection,  though  well 
aware  that  they  are  not  personal  luggage,  they  will  be  liable  (o). 

Porters  -A.  company  employing  porters  in  the  usual  way  are  responsible 

takingcharge  for  passengers'  luggage,  not  merelv  while  it  is  being  carried  on 

of  luggage.      the  journey,  but  also  while  it  is  in  course  of  translation  from  cab 

to  train  or  train  to  cab  ( p).     There  seems,  however,  to  be  a  little 

doubt  on  the  subject  of  luggage  left  on  the  platform,  even  though 


{g)  See  Talley  v.  G.  W.  Ry. 
Co.,  L.  R.  6C.  P.  44. 

(h)  Macrow  v.  G.  W.  Ry.Co., 
L.  R.  6  Q.  B.  612. 

(/)  Macrow  v.  G.  W.  Ry.  Co., 
supra. 

(k)  Mytton  v.  Midi.  Ry.  Co., 
4  H.  &  N.  615. 

(/)  Phelps  v.  L.  &  N.  W.  Rv. 
Co.,  19  C.  B.,  N.  S.  321. 

(m)  Hudstoni*.  Midi.  Ry.Co., 


L.  R.  4  Q.  B.  366. 

(n)  Case  v.  L.  &  S.  W.  Ry. 
Co.,  68  L.  T.  176. 

(o)  Cahill  v.  L.  &  N.  W.  Ry. 
Co.,  13  C.  B.,  N.  S.  818;  and 
G.  N.  Ry.  Co.  v.  Shepherd,  8 
Ex.  20. 

(p)  Richards  v.  L.  B.  &  S.  C. 
Ry.  Co.,  7C.B.  839;  and  Butcher 
v.L.  &  S.  W.  Ry.  Co.,  16  C.  B.  13. 


passengers"  luggage.  61 

a  porter  may  have  taken  charge  of  it.  The  London  and  North  A  cell's  case. 
Western  have  been  held  (q)  not  liable  for  the  loss  of  a  portman- 
teau which  an  intending  passenger  from  Manchester  to  Hull  gave 
to  a  porter  on  arriving  in  a<al>  at  the  Manchester  station.  The 
porter  left  the  portmanteau  on  the  platform,  where  the  intending 
passenger  found  it  soon  alterwards;  and,  as  he  could  not  find  an- 
other porter,  he  labelled  it  himself.  Then  he  went  away  for  a 
little  time;  and  when  he  came  back  the  portmanteau  had  disap- 
peared. But  the  Court  seems  to  have  thought  that  if,  on  arriving 
at  the  station,  the  traveller  had  said  "Hull,"  and  the  porter  had 
replied  ''All  right,"  the  company  would  have  been  responsible; 
and  indeed  this  point  would  seem  to  be  clear  from  the  case  of 
Lovell  v.  London,  Chatham  and  Dover  Railway  (/).  The  only  Lovell'sease. 
thing  is,  you  must  not  go  to  a  station  about  two  hours  before  your 
train  starts,  and  expect  the  railway  company  to  be  insurers  of 
your  luggage  all  that  time. 

In  a  recent  case  (in  which  a  lady's  maid  coming  from  Malvern  The  lady's 
lost  her  box  at  Paddington),  it  has  been  held  that,  in  regard  to  a  maid's  case, 
passenger's  luggage  on  the  train's  arriving  at  the  station  he  gets 
out  at,  it  is  the  company's  duty  to  have  the  luggage  ready  at  the 
usual  place  of  delivery,  while  it  is  the  passenger's  duty  to  re- 
move it  within  a  reasonable  time  (s).  After  that  it  would  seem 
that  the  company's  liability  is  that  of  warehousemen  (I). 

Hodkinson  v.  L.  &  N.  W.  Ry.  Co.  (it)  was  the  case  of  an  unfor-  The  gover- 
tunate  governess  who  lost  her  box.  She  arrived  at  a  station  of  ness  s  case, 
the  defendants  (Ashton-under-Lyne).  and  one  of  the  company's 
porters  took  her  luggage  from  the  van.  "  Would  she  have  a  cab?" 
"No,  she  would  walk  and  send  for  her  luggage."  "All  right, 
mum,"  said  the  porter,  "  I'll  put  them  on  one  side,  and  take  care 
of  them."  The  governess  went  ofT.  and  so  did  the  luggage;  for  two 
hours  afterwards,  when  it  was  wanted,  it  could  not  be  found.  It 
was  held  that  the  company  were  not  responsible  for  the  loss. 
They  had  delivered  the  luggage  in  the  proper  way,  and  the 
woman's  re-delivery  of  it  to  the  porter  could  not  be  taken  to  af- 
fect them.  "  Patscheider  v.  Great  Western  Railway  Company," 
said  Lord  Coleridge,  C.J.,  "is  clearly  distinguishable;  there  the 
plaintiff  had  no  opportunity  of  taking  possession  of  her  box. 
Possibly  the  porter  may  be  responsible  for  the  loss;  but  the  com- 
pany clearly  are  not." 

(q)  Agrell  v.  L.  &  N.  W.  Ry.  peal  (overruling  the  court  he- 
Co.,  printed  in  a  note  to  Leach  v.  low)  held  a  railway  company 
S.   E.   Ry.  Co.,  34  L.  T.,  N.   S.  liable   for  the  loss  of  luggage 
134.  confided  to  the  care  of  a  porter. 
(?•)  45  L.  J.  Q.  B.  476.  (0  Chapman  v.  G.  W.  Ry.  Co., 
(.<?)  Patscheider  v.  G.  W.  Ry.  5Q.  B.  B.  27^;  and  see  Mitchell 
Co.,  3  Ex.  D.  153.     See  also  the  v.   Lane.  &  Y.,  L.  R.,  10  Q.  B. 
very  recent  case  of  Bunch  v.  G.  256;  and  Hough  v.  L.  &  N.  W. 
W.  Ry.  Co.  (The  Times.  Ap.  13th,  Ry.  Co. ;  L.  R.  5  Ex.  51. 
1886),  where  the  Court  of  Ap-  (u)  14  Q.  B.  D.  220. 
6  COMMON   LAW. 


62 


passengers'  luggage 


Cloak  rooms.  1°  respect  of  articles  deposited  at  the  cloak  room,  a  railway 
company's  liability  is  not  that  of  .common  carriers.  But  compa- 
nies are  in  the  habit  of  attempting  to  vary  the  ordinary  contract 
of  bailment  by  issuing  tickets  containing  conditions.  If  the  cus- 
tomer reads  the  conditions  and  makes  no  objections,  he  will  be 
bound  by  them;  and  so  he  will  be  if  he  is  aware  that  there  are 
conditions,  and  does  not  take  the  trouble  to  look  at  them,  or 
thinks  it  better  not  to  (x).  But  he  will  not  be  bound  by  the  con- 
ditions if  he  did  not  read  them  and  was  not  aware  ol  their  exist- 
ence {>/). 


Watkins  v. 
Rymill. 


Liability  to 

whom. 


IjOSs  off 
line. 


A  recent  case  of  importance  on  the  subject  of  special  conditions 
on  tickets  is  Watkins  v.  Rymill  (z),  where  the  plaintiff  had  de- 
livered to  the  defendant  a  waggonette  to  be  sold,  and  had  taken 
from  him  a  printed  form  containing  a  receipt  for  the  waggonette, 
followed  by  the  words;  "  subject  to  the  conditions  as  exhibited  upon 
the  premises.'"  The  plaintiff  was  held  to  be  bound  by  the  condi- 
tions, though  he  had  put  the  document  into  his  pocket  without 
looking  at  it.  On  this  case  Mr.  Pollock,  in  his  admirable  book 
on  "Contracts"  («),  remarks,  "Are  reasonable  means  of  know- 
ledge equivalent  to  actual  knowledge?  It  seems  better  on  prin- 
ciple to  say  that  actual  knowledge  may  be  inferred  as  a  fact 
from  reasonable  means  of  knowledge,  and  inferred  against  the 
bare  denial  of  the  party  whose  interest  it  was  not  to  know. 
This  is  one  of  the  rules  of  evidence  which  are  apt  in  particular 
departments  to  harden  into  rules  of  law,  and  the  judgment  in 
Watkins  v.  Rymill  certainly  tends  in  this  direction.  It  would 
be  curious,  however,  if  after  constructive  notice  has  been  justly 
discredited  in  equity  cases  a  new  variety  of  it  should  be  in- 
troduced in  a  question  of  pure  common  law." 

The  liability  of  a  railway  company  for  passengers'  luggage,  it 
may  be  mentioned,  is  to  the  passenger  travelling  with  it,  though 
it  may  not  be  really  his  property.  Thus,  a  man  sending  on  his 
luggage  by  a  servant  cannot  sue  for  its  loss  (b).  So  it  does  not 
matter  who  paid  the  fare:  a  servant,  for  instance,  can  sue  for  loss 
of  luggage  though  the  ticket  was  taken  by  his  master  (c). 

Companies  sometimes  issue  tickets  stating  that  they  do  not 
hold  themselves  responsible  for  loss  or  injury  arising  "  off  their 
own  lines."  To  bring  themselves  within  such  a  condition  a  rail- 
way company  must  show  that  the  luggage  when  lost  was  out  of 


(x)  Harris  v.  G.  W.  Ry.  Co., 
1  Q.  B.  D.  515. 

(y)  Parker  v.  S.  E.  Ry.  Co.,  2 
C.  P.  D.  416;  and  Henderson  r. 
Stevenson,  L.  R.  2  H.  L.  Sc.  470. 

(z)  10  Q.  B.  D.  178,  and  see 
Woodgate's  case,  51  L.  T.,  N. 
S.,  830. 


(a)  4th  cd.,  p.  47. 

(b)  Becher  v.  G.  E.  Ry.  Co., 
L.  R.  5  Q.  B.  241. 

(c)  Marshall  v.  York,  &c,  Ry. 
Co.,  11  C.  B.  655;  and  see  Aus- 
tin v.  G.  W.  Ry.  Co.,  L.  R.  2 
Q.  B.  442. 


PASSENGERS'  LUGGAGE — TRAINS  BEHIND  TIME.  63 

their  custody;  so  that  if  it  is  lost  at  a  station  which  they  have  the 
use  of  by  agreement  with  another  company,  they  will  not  be 
protected  (d). 

Independently  altogether  of  contract,  the  traveller  may  bring  Suing  in 
an  action  against  a  railway  company  who  have  taken  his  port-  tort, 
manteau  to  be  carried  and  then  negligently  lost  it. 

In  Hooper  v.  L.  &  N.  W.  Ry.  Co.  (c)  the  plaintiff  had  taken  a  Hooper's 
G.  W.  through  ticket  from  Stourbridge  to  Euston,  changing  at  c'ase. 
Birmingham  into  a  train  of  the  defendants.  He  saw  his  port- 
manteau transferred  from  the  G.  W.  to  the  L.  &  N.  W.  train,  but 
at  Euston  it  was  missing.  Notwithstanding  that  his  contract 
was  with  the  G.  W.  people,  he  was  held  entitled  to  sue  the  L.  & 
N.  W.  Co.  as  for  a  breach  of  duty. 


Trains  behind  Time,&c. 


DENTON  v.  GREAT  NORTHERN  RAILWAY  CO.         [26.] 
[5  E.  &  A.  860  (1856).] 

On  the  25th  of  March,  1855,  Mr.  Denton,  an  en- 
gineer of  some  eminence,  had  occasion  to  go  from 
Peterborough  to  Hull,  where  he  had  an  appointment 
for  the  next  morning.  He  consulted  the  G.  N.  R.  Com- 
pany's time-tables,  and  found  there  was  a  train  leaving 
Peterborough  at  7  p.  m.  which  would  land  him  at  Hull 
about  midnight.  This  just  suited  him,  so  he  took  his 
ticket  for  Hull  and  started  by  it.  But  when  he  got  to 
Milford  Junction,  he  was  informed  by  an  official  that 
the  lato  train  to  Hull  had  been  discontinued,  and  that 
he  could  not  get  there  that  night.  The  fact  was,  that 
the  line  from  Milford  Junction  to  Hull  belonged  to  the 
North  Eastern  Railway  Company,  who  till  March  1st 
had  run  a  train  departing  a  few  minutes  after  the  arri- 
val of  the  train  leaving  Peterborough  at  7  p.  m.  But 
it  had  not  run  at  all  during  March,  and  the  Great 
Northern  Railway  Company  had  published  their  March 
time-tables,  though  they  had  had  notice  that  it  would 

(<1)  Kent.   v.   Midi.  Ry.   Co.,  Met.   Ry.   Co.;  5  C.  P.   D.  157, 

L.  R.  10  Q.  B.  1.  and    disregarding    Mvtton     v. 

(e)  50  L.  J.  Q.  B.  103,  decided  Midi.   Ry.  Co.,  28  L.'j.  Exch. 

on  the  authority  of  Foulkes  o.  398  as  an  authority. 


64  TRAINS    BEHIND   TIME. 

not  ran.  In  consequence  of  the  absence  of  this  train, 
Mr.  Denton  did  not  get  to  Hull  in  time  to  keep  his  ap- 
pointment, and  sustained  damages  to  the  amount  of 
£5  10s.,  for  which  he  sought  to  make  the  Great  North- 
ern Railway  Company  liable.  He  was  quite  success- 
ful.    The  company  were  held  liable,  on  the  grounds — 

1st.  That  they  had  been  guilty  of  a  false  representa- 
tion. "  It  is  all  one,"  said  Lord  Campbell,  "  as  if  a 
person  duly  authorised  by  the  company  had,  knowing 
it  was  not  true,  said  to  the  plaintiff,  '  There  is  a  train 
from  Milford  Junction  to  Hull  at  that  hour.'  The 
plaintiff  believes  this,  acts  upon  it,  and  sustains  loss. 
It  is  well  established  law  that  where  a  person  makes 
an  untrue  statement,  knowing  it  to  be  untrue,  to  an- 
other, who  is  induced  to  act  upon  it,  an  action  lies. 
The  facts  bring  the  present  case  within  that  rule." 

2nd.  That  the  time-tables  amounted  to  a  contract. 


[27.]      LE  BLANCHE  v.    LONDON  &  NORTH  WESTERN 

RAILWAY  CO. 

[1  C.  P.  D.  286  (1876).] 

Mr.  Le  Blanche  was  a  business  man,  who,  in  August, 
1874,  like  a  great  many  other  hard-working  individ- 
uals, decided  to  spend  a  fortnight  at  Scarborough. 
He  took  a  first-class  ticket  of  the  London  and  North 
Western  Company  to  go  from  Liverpool  to  Scarbor- 
ough by  the  2  p.  m.  train,  which,  the  time-tables  told 
him,  would  arrive  at  Scarborough  at  7.30  p.  m.  Mr. 
Le  Blanche's  journey  lay  by  Leeds  and  York,  at  each 
of  which  places  it  was  necessary  for  him  to  change 
and  get  into  a  train  not  belonging  to  the  London  and 
North  "Western  Company.  The  train  was  27  minutes  late 
at  Leeds,  and,  in  consequence  of  that,  Mr.  Le  Blanche 
missed  the  train  he  ougrht  to  have  caught,  and  did  not 


TRAINS    BEHIND   TIME.  65 

arrive  at  York  till  7  o'clock,  which  was  too  late  for  the 
train  on,  which  arrived  at  Scarborough  at  7.30.  On  in- 
quiry, he  was  informed  that  the  next  train  would  leave 
York  at  8  and  get  to  Scarborough  at  10.  Most  men  un- 
der these  circumstances  would  have  spent  an  hour  in 
dining,  or  looking  at  the  old  city.  Not  so  with  Mr.  Le 
Blanche.  He  instantly  ordered  a  special  train,  and  ar- 
rived at  Scarborough  at  about  half- past  eight. 

He  now  brought  an  action  to  recover  the  money  he 
had  paid  for  the  special  train, — nearly  £12, — but  in 
spite  of  the  delay  being  traced  to  negligence,  he  did  not 
get  the  money  because,  though  it  is  a  sound  principle 
of  law  that  if  the  party  bound  to  perform  a  contract 
does  not  perform  it,  the  other  party  may  do  so  for  him 
as  reasonably  near  as  may  be  and  charge  him  for  the 
reasonable  expense  incurred  in  so  doing,  yet  he  may  not 
perform  it  unreasonably  and  oppressively,  and  it  was 
ridiculous  for  a  man  to  take  a  special  train  merely  for 
the  purpose  of  getting  to  a  nice  place  an  hour  earlier. 

The  duty  of  a  carrier  of  passengers  at  common  law  is  simply  Common  law 
to  deliver  them  at  their  destination  within  a  reasonable  time;  duty, 
and  it  has  been  expressly  held  that  the  mere  granting  of  a  ticket 
imposes  on  a  railway  company  no  obligation  to  have  a  train  ready 
to  start  at  a  definite  time  (f). 

But  railway  companies  invariably  issue  time-tables  and  condi-  Varied  by 
tions  so  as  to  vary  their  common  law  liability;  and  the  issue  of  time  tables, 
such  time-tables  amounts  to  an  express  contract  with  the  public. 
The  usual  condition  which  the  companies  seek  to  enforce  is  that 
"  lliough  every  attention  will  be  paid  to  ensure  punctuality,  they  do  not  "  Every  at- 
warrant  the  departure  or  arrival  of  the  trains  at  the  limes  specified  in  teutl0U- 
thetimc.bills-"  and  the  meaning  of  this  and  similar  conditions  is 
frequently  discussed.     On  the  whole  it  is  clear  that  a  company 
cannot  contract  itself  in  this  way  out  of  its  liability  to  be  reason- 
ably punctual.     But  on  the  other  hand,  it  is  not  to  be  held  liable 
merely  because  a  train  is  late.     It  must  be  affirmatively  shown  that 
the  lateness  is  due  to  neglect  to  pay  the  "  every  attention  "  which 
is  promised.      No  doubt  the  extreme  lateness  of  a  train  would 
suggest  a  presumption  of  such  negligence;  but  it  would  be  open 

(/)  Hurst  v.  G.  W.  Ry.  Co.,  19  C.  B.,  N.  S.,  310. 


66 


TRAINS    BEHIND   TIME. 


Unavoidable   to  *ne  company  to  rebut  it  by  snowing  that  it  was  due  to  a  fog  or 
lateness.  a  strong  wind,  or  the  slippery  state  of  the  rails,  or  a  flood,  or  to 

sjme  other  circumstance  over  which  they  had  no  control  [ff). 
Mr.  Wood-  Tlie  recent  case  ot  Woodgate  v.  The  Great  Western  Railway 

gate's  Christ-  Company  (y)  is  of  great  importance  on   this  branch  of  the  law. 
uiasEve.  The  plaintiff,  Mr.  Woodgate,  was  a  well-known  and  much  es- 

teemed barrister,  who  on  Christmas  Eve,  1881,  took  a  first-class 
return  ticket  from  Paddington  to  Bridgnorth,  a  station  on  a  branch 
line  of  the  defendants.  The  ticket  had  '•  See  back"  on  one  side 
(only  on  the  return  half),  and  "  Issued  subject  to  the  conditions  slated 
on  the  Company* stime  bills"  on  the  other.  The  "time  bills"  were 
published  monthly  in  a  book  of  about  one  hundred  pages,  and  on 
the  first  page  was  a  notice  headed  "  Train  Bills,"  that  the  com- 
pany would  not  be  accountable  for  injury  which  might  arise  from 
delays,  unless  in  consequence  of  the  wilful  misconduct  of  the 
company's  servants.  By  reason  of  its  being  Christmas  time,  of  the 
weather  being  foggy,  and  of  there  having  been  a  collision  some 
bours  before,  Mr.  Woodgate  did  not  arrive  at  his  destination  so 
speedily  as  he  could  have  wished.  In  fact,  to  cut  the  story  short, 
his  journey  took  ten  hours  instead  of  six  as  advertised.  In  an 
action  which  he  proceeded  to  bring  against  the  railway  company, 
it  was  held,  upon  a  special  case,  that  the  conditions  on  the  time 
bills  were  incorporated  in  the  plaintiff 's  contract  with  the  com- 
pany, and  that  there  was  no  evidence  of  their  wilful  misconduct 
or  liability.  "I  hold,"  said  Smith,  J.,  in  accordance  with  the  de- 
cision in  the  case  of  Le  Blanche  v.  London  and  Northwestern  Rail- 
way Company,  that  the  taking  of  the  ticket,  the  time-table,  and 
the  conditions  formed  the  contract  under  which  the  the  Great 
AVestern  Railway  Company  undertook  to  carry  Mr.  Woodgate. 
Then. 'that  being  my  opinion,  the  question  arises,  what  is  the 
meaning  of  the  contract?  ....  I  think  no  man  can  read 
this  clause  without  coming  to  one  conclusion.  It  does  not  say, 
'We  will  be  liable  in  no  case,'  but  it  simply  says  this:  'If  you, 
as  a  passenger,  have  incurred  any  loss,  inconvenience,  or  injury 
by  reason  of  delay  or  detention,  we  will  compensate  you  if  you 
prove  it  is  by  the  wilful  misconduct  of  our  servants,  but  other- 
wise not..'" 
No  room.  An  action  may  be  maintained  by  a  traveller  for  whom,  though 

the  train  starts  as  advertised,  there  is  no  room.  "This  was  held 
in  the  case  of  the  Great  Northern  Railway  Company  v.  Hawcroft 
(/()  where  the  plaintiff  was  a  Parnsley  confectioner,  who  took  an 
excursion  return  ticket  to  go  up  to  London  and  seethe  Great  Ex- 
hibition of  1851.  The  excursion  train  by  which  he  proposed  on 
a  Saturday  morning  to  return  was  so  full  that  he  could  not  get  a 


(/)   See  Fitzgerald  v.  Midi,     see  M'Cartan  v.  N.  E.  By.  Co., 
Ry.  Co.,  34  L.  T.  771.  54  L.  J.  Q.  B.  441, 

{y)  51  L.  T.,  N.  S.,  826;  and         (A)  21  L.  J.  Q.  B.  178. 


TRAINS    BEHIND   TIME.  07 

seat,  and,  as  the  company  would  not  allow  him  to  go  by  one  of  The  Barnsley 
their  ordinary  trains,  he  was  kept  hanging  about  King's  Cross  confection- 
station  with  grooms  and  porters  till  late  in  the  evening.     "When  er's  Tr'P  to 
at  last  he  did  get  a  train,  he  found, that  it  took  him  no  further  ^0Uli0U 
than  the  ancient  and  interesting  town  of  Doncaster,  where  it 
landed  him  on  Sunday  morning  in  good  time  for  church.     The 
Barnsley  confectioner,  however,  did  not  care  for  any  quiet  Sun- 
days at  Doncaster.     After  a  fortnight  of  metropolitan  dissipation, 
he  wanted  to  get  back  to  the  bosom  of  his  family  as  quickly  as 
possible,  so, (there  being  no  Sunday  trains)  he  hired  a  carriage 
and  drove  from  Doncaster  to  Barnsley.     Under  there  circum- 
stances thecompany  were  held  liable.     '  I  do  not  think,'  said  Pat- 
terson, J.,  'that  they  had  any  right  to  keep  him  in  London  until 
the  9.45  evening  train.     They  should  have  sent  another  train. 
The  case  rinds  that  they  might  have  done  so  without  danger.'  " 

Assuming  that  an  action  lies,  there  is  a  further  question  as  to  What  dama- 

the  damages  obtainable.     It  is  a  clear  rule  that  damages  cannot  be  Ses- 

obtained  for  the  loss  of  a  business  engagement,  such  loss  not  heinjr  in  „ 

J  ...  Business  en- 

the  contemplation  of  both  parties  at  the  time  of  contracting.  The  gagement. 

case  of  Buckmaster  v.  The  Great  Eastern  Railway  Company  (i), 

where  a  Suffolk  miller  who  missed  his  market  recovered  £10  in  The  miller's 

respect  of  loss  of  business,  is  not  really  a  violation  of  this  rule,  case- 

because  probably  the  train  was  especially  run  on  the  particular 

day  and  at  the  particular  time  to  enable  people  to  attend  the  Mark 

Lane  Corn  Market,  and  it  was  for  that  purpose,  as  the  company 

knew,  that  the  plaintiff  had  taken  a  season  ticket.     Nor  can  dam-   . 

'  l  Annoyance, 

ages  be  obtained  for  the  disappointment  and  annoyance  which  the 

traveller  will  naturally  feel.  But  damages  may  be  obtained  for  Inconvience. 
personal  inconvenience.  A  well-known  case,  on  this  point  is  Hobbs 
v.  The  London  and  South  "Western  Railway  Company  (k),  where  *  ,',' 
a  family  party  took  tickets  on  the  defendants'  railway  to  go  from 
"Wimbledon  to  Hampton  Court  by  the  midnight  train.  They  got 
into  the  train,  but,  unluckily  for  them,  it  did  not  goto  Hampton 
Court,  but  went  along  the  other  branch  to  Esher,  where  they  were 
unable  to  get  either  a  conveyance  or  accommodation  for  the  night. 
Accordingly,  though  it  was  a  nasty  wet  night,  they  had  to  tramp 
it  home,  not  arriving  till  about  three  o  clock  in  the  morning;  and, 
as  one  of  the  results,  the  wife  caught  cold  and  was  laid  up  for  a 
long  time,  being  unable  to  assist  her  husband  in  his  business,  and 
having  to  have  a  doctor.  In  an  action  by  the  husband  and  wife 
against  the  company  it  was  held  that  they  were  entitled  to  dam- 
ages for  the  inconvenience  suffered  in  consequence  of  being  obliged 
to  walk  home,  but  not  for  the  illness  and  its  consequences.  This 
distinction,   however,  was  pretty  freely  commented  on  by  the 

(i)  23  L.  T.,  N.  S.,  471.  (A-)  L.  R.  10  Q.  B.  111. 


68  TRAINS    BEHIND    TIME. 

The  Hobbs      Court  of  Appeal  in  McMahon  v.   Field  (I),  -where  the  plaintiff's 
ease.  horses  had  been  turned  out  of  an  inn-keeper's  stables,  through 

that  person  breaking  his  eontraet,  and  had  caught  cold  owing  to 
the  exposure.  It  was  held  that  the  damage  in  respect  of  such 
cold  was  recoverable,  as  it  was  the  probable  consequence  of  the  de- 
fendant's breach  of  contract,  and  was  not,  therefore,  too  remote. 
"InHobbs  v.  London  and  South  "Western  Railway  Company," 
said  Bramwell,  L.J.,  "  it  was  said. that  the  damage  to  the  wife 
was  a  secondary  consequence  of  the  breach  of  contract  and'too  re- 
mote ;  and  by  way  of  illustration  the  case  was  given  of  a  person 
walking  home  in  the  dark,  who  took  a  false  step,  which  resulted 
in  a  fall  and  a  broken  limb  ;  but  I  must  say  I  do  not  see  why  a 
passenger  who,  by  the  default  of  the  railway  company,  was  obliged 
to  walk  home  in  the  dark,  might  not  recover  in  respect  of  such 
damage,  it  being  an  event  which  might  not  unreasonably  be  ex- 
pected to  occur."  "Then  it  is  said,"  added  Brett,  L.J.,  "that 
the  case  is  governed  by  that  of  Hobbs  v.  London  and  South  West- 
ern Railway  Company.  Now,  I  must  confess  that,  if  I  acquiesce 
in  that  case,  I  cannot  quite  agree  with  it.  What  were  the  facts 
there?  ....  The  wife  in  consequence  of  the  exposure  caught 
a  cold,  and  it  was  said  that  such  damage  was  too  remote  to  be 
recovered.  Why  was  it  too  remote?  ....  Suppose  a  man 
let  lodgings  to  a  woman,  and  then  turned  ber  out  in  the  middle 
of  the  night  with  only  ber  night-clothes  on,  would  it  not  be  a 
natural  consequence  that  she  would  take  cold?"  The  Lord  Jus- 
tice, however,  distinguished  the  two  cases  in  this  way,  "  People 
do  not  getout  of  atrain  and  walk  home  at  night  without  catching 
cold,  and  it  is  not  nearly  so  inevitable  a  consequence  that  a  per- 
son getting  out  of  a  train  under  such  circumstances  as  in  Hobbs 
v.  London  and  South  Western  Railway  Company,  should  catch 
cold  as  that  borses  turned  out,  as  these  were  in  this  case,  should 
suffer.  There  is,  therefore,  a  difference,  though  I  own  I  do  not 
see  much,  between  this  case  and  that  of  Hobbs  v.  London  and 
Hotel  expen-  South  Western  Railway  Company."  Hotel  expenses  entailed  by 
ses.  the  breach  of  contract  may  be  recovered  (m).     Moreover,  on  the 

principle  that,  when  a  contracting  party  fails  to  perform  his  en- 
gagement, the  other  may  perform  it  for  himself  and  send  ,  in  his 
bill,  provided  he  does  not  perform  it  oppressively  and  unreason- 
Special  train,  ably,  the  traveller  may  take  a  carriage  or  special  train,  and  charge 
it  to  the  company.  A  rough  test  that  might  be  applied  as  to  the 
oppressiveness  is, — supposing  this  person  had  had  to  pay  the  money 
out  of  his  own  pocket,  ivould  he  have  been  in  such  a  hurry  to  yet  to  his 
destination  ? 

(I)  7  Q.  B.  D.  591.  Hull  to   see  his   customers  in 

(m)  Hamlin  v.  G.  N.  Ry.  Co.,  Yorkshire,  and   found   himself 

1  H.  &  N.  408,  which  was  the  stranded       unexpectedly       at 

case  of  the  master  tailor  who  Grimsby. 

was  going  down  from  London  to 


HUSBAND    AND    WIFE.  69 

An  interesting  recent  case  on  railway  law  is  Burnett  v.  Great  All  passenger 
North  of  Scotland  Railway  (10  App.  Cat.  147),  where  the  plain-  trains  to  stop. 

tiff's  grievance  was  that  the  defendants  did  not  stop  all  their 
passenger  trains  at  his  station  in  accordance  with  their  agreement 
made  many  years  before  in  consideration  of  their  getting  a  piece 
of  his  land  to  build  their  station  on.  There  were  two  particular 
trains  which  the  plaintiff  desired  to  have  regularly  stopped,  a 
Queen's  Messenger  train  and  a  Post  Office  train,  and  it  was  held 
that  he  was  entitled  to  have  them  stopped,  although  they  only 
ran  while  the  Queen  was  at  Balmoral,  and  were  of  a  decidedly 
special  character.  "What  is  a  passenger  train?"  said  the  Court. 
"It  may  be  a  special,  or  it  may  be  an  express  train;  it  may  carry 
the  mail,  or  a  Queen's  messenger,  or  even  excursionists,  but  it 
does  not  follow  that  it  is  not  also  a  passenger  train." 


Power  of  Wife  to  Bind  Husband  to  her  Con- 
tracts. 


MANBY  v.  SCOTT.  [28.] 

[1  Sid.  109  (1659).] 

"Scott's  wife  departed  from  him  without  his  consent, 
and  lived  twelve  years  separate  from  him,  and  then  re- 
turned; but  he  then  would  not  receive  her,  nor  allow  her 
any  maintenance,  and  discharged  or  forbade  tradesmen, 
particularly  the  plaintiffs,  from  trusting  her  with  any 
wares."  The  plaintiffs  disregarded  the  prohibition,  sold 
the  wife  goods  at  reasonable  prices  arid  tit  for  her  qual- 
ity, and  then  sued  the  husband.  They  did  not  succeed, 
however;  and  Manby  v.  Scott  has  been  for  226  years 
the  leading  authority  for  the  principle  that  the  wife's 
contract  does  not  bind  her  husband  unless  she  acts  by 
his  authority. 


MONTAGU"  r.  BENEDICT.  [29,] 

[3  B.  &  C.  031  (1825).] 

Mr.  Benedict  was  a  London  lawyer, whose  wife  ordered 
various  articles  of  expensive  jewellery  from  the  plaintiff 
without  her  husband's  knowledge.     In  an  action  by  the 


70  HUSBAND    AND    WIFE. 

jeweller  against  the  husband  it  was  argued  for  the  plain- 
tiff with  some  plausibility  that  the  defendant  and  his 
wife  were  in  comfortable  circumstances  of  life;  though 
they  might  not  be  rich,  and  that  cohabitation  was  evi- 
dence of  Benedict's  assent  to  his  wife's  contract.  It  was, 
however,  unanimously  held  that  the  goods  supplied  were 
■not  necessaries,  and  that  therefore  the  defendant  could 
not  be  compelled  to  pay  for  them.  "If  a  tradesman," 
said  Bayley,  J.,  "is  about  to  trust  a  married  woman  for 
what  are  not  necessaries,  and  to  an  extent  beyond  what 
her  station  in  life  requires,  he  ought,  in  common  pru- 
dence, to  inquire  of  the  husband  if  she  has  his  consent 
for  the  order  she  is  giving." 


[30.]  SEATON  v.  BENEDICT. 

[5  Bixg.  28  (1828).] 

After  the  jewellery  case,  just  related,  the  Benedicts 
went  to  live  at  Twickenham.  But  Mrs.  Benedict  con- 
tinued her  extravagance.  She  became  indebted  to  a 
local  haberdasher  for  scarves,  gloves,  laces,  and  other 
articles;  and  finally  the  tradesman  sued  her  husband. 

The  goods  supplied  were  unquestionably  necessaries, 
but  then  Mr.  Benedict  had  always  duly  furnished  his 
wife  with  necessary  apparel,  and  knew  nothing  of  her 
clandestine  dealings  with  Seaton;  and  on  this  ground 
the  plaintiff  was  disappointed  in  his  expectations  of 
getting  paid.  "It  may  be  hard,"  said  Best,  C  J.,  "on  a 
fashionable  milliner  that  she  is  precluded  from  supply- 
ing a  lady  without  previous  inquiry  into  her  authority. 
The  court,  however,  cannot  enter  these  little  delicacies, 
but  must  lay  down  a  law  that  shall  protect  the  husband 
from  the  extravagance  of  his  wife." 


HUSBAND   AND    WIFE.  71 

JOLLY  v.  REES.  [31.] 

[15  C.  B.,  N.  S.,  628  (1863).] 

Mr.  Rees,  a  country  gentleman  living  near  Llanelly, 
told  his  wife  that  he  was  not  going  to  pay  for  any  dra- 
pery or  millinery  goods  she  or  her  daughters  might 
choose  to  buy  on  credit.  They  could  do  well  enough, 
he  said,  on  the  allowance  they  already  had.  In  spite 
of  this  distinct  prohibition,  Mrs.  Rees  gave  Messrs. 
Jolly,  hosiers  and  linendrapers  at  Bath,  substantial 
orders,  and  they  by  and  by  sent  Mr.  Rees  a  substantial 
bill.  This  Mr.  Rees  absolutely  declined  to  pay,  and 
litigation  ensued.  The  tradesmen  had  not  known  that 
Mr.  Rees  had  expressly  forbidden  his  icife  to  incur  sur- 
ruptitious  debts,  and  the  goods  they  had  supplied  were 
what  the  law  calls  "  necessaries,"  so  they  felt  confident 
of  success.  The  judges,  however,  decided  against 
them,  and  thus  "carried  to  its  logical  results  the  prin- 
ciple that  the  wife's  authority  to  bind  her  husband  is  a 
mere  question  of  agency." 


SMOUT  v.  ILBERRY.  [32.] 

[10  M.  &  W.  1  (1842).] 

A  man  who  had  been  in  the  habit  of  dealing  with  the 
plaintiff  for  meat  supplied  to  his  house  went  to  China, 
leaving  his  wife  and  family  behind,  and  died  there.  It 
was  held  that  the  wife  was  not  liable  for  goods  sup- 
plied to  her  after  his  death,  but  before  the  news  of  it 
had  arrived,  she  having  had  originally  full  authority  to 
contract,  and  done  no  wrong  in  representing  her  autho- 
rity as  continuing. 

The  law  of  husband  and  wife  in  respect  of  the  wife's  power  to 
bind  her  husband  to  a  contract  she  has  entered  into  since  Jthe 
marriage  is  best  considered  under  two  heads: — 

(1.)  When  husband  and  wife  are  living  together. 


72 


HUSBAND   AND   WIFE. 


Living  to- 
gether. 


Debenham  v. 
Mellon. 


Separated. 


Necessaries, 
what  are. 


(2.)  When  they  are  not. 

(1.)  When  husband  and  wife  are  living  together  there  is  a  pre- 
sumption that  the  wife  has  her  husband's  authority  to  enter  into 
a  contract  so  as  to  bind  him  for  necessaries.  But  there  are  several 
ways  in  which  a  husband  may  rebut  the  presumption.  He  may 
show  that  at  the  time  when  his  wife  incurred  the  debt  she  itas 
already  properly  supplied  with  necessaries,  or,  which  is  the  same 
thing,  with  money  to  purchase  them ;  he  may  show  that  he  ex- 
pressly forbade  her  to  pledge  his  credit;  he  may  show  that  he  ex- 
pressly forbade  the  plaintiff  to  trust  her;  or,  lastly,  he  may  show 
that  the  credit  was  given  to  the  woman  herself  (n). 

Moreover,  tbe  presumption  must  now  be  taken  subject  to  the 
provision  of  the  Married  Women's  Property  Act,  1882,  that 
"every  contract  entered  into  by  a  married  woman  shall  be 
deemed  to  be  a  contract  entered  into  by  her  with  respect  to,  and 
to  bind,  her  separate  property,  unless  the  contrary  be  shown"  (o). 

Jolly  v.  Eecs  was  a  short  time  ago  brought  under  discussion, 
and  approved  of,  by  the  House  of  Lords  in  the  case  of  Debenham 
v.  Mellon  (p). 

(2.)  When  husband  and  wife  are  living  apart,  the  presump- 
tion is  that  the  wTife  has  no  authority  to  pledge  her  husband's 
credit.  And  when  the  separation  is  the  wife's  own  fault,  when 
she  has  left  her  home  without  just  cause — e.g.,  to  live  with  an 
adulterer — this  presumption  cannot  be  rebutted.  But  if  it  is  by 
mutual  consent  that  husband  and  wife  are  living  apart,  or  if  the 
wife  has  been  driven  out  of  doors  by  her  husband,  or  if  his  con- 
duct at  home  is  so  abominable  that  no  decent  woman  could  live 
under  the  same  roof  with  him,  she  goes  forth  with  implied  au- 
thority to  pledge  his  credit  for  necessaries.  If,  however,  the 
husband  makes  his  wife  a  sufficient  allowance,  or  what  she  ac- 
cepts as  a  sufficient  allowance,  when  thus  living  separate,  and 
actually  pays  it,  the  tradesman  cannot  recover  against  her  hus- 
band (q) ;  and  it  is  not  material  that  the  tradesman  had  no  notice 
of  this  allowance  (r).  Probably,  too,  if  the  lady  has  money  of 
her  own,  or  if  she  can  earn  it,  she  has  no  implied  authority  to 
pledge  her  husband's  credit  (s).  A  pension  during  the  Crown's 
pleasure,  however,  would  not  exonerate  the  husband  (t). 

"  Necessaries"  are  such  things  as  may  fairly  he  considered  essen- 
tial to  the  decent  maintenance  and  general  comfort  of  a  person  in  the 
social  jiosition  of  the  defendant's  wife.     But  the  w7ife  has  no  implied 


(n)  Bentley  v.  Griffin,  5 
Taunt.  356. 

(o)  45  &  46  Vict.  c.  75,  s.  1, 
sub-s.  3. 

(p)  L.  P.  6  App.  Ca.  33. 


(7)  Eastland   v.    Burchell,   3     Burr.  2177. 
Q.  B.  D.  432. 


(r)  Mizen  r.  Pick,  3  M.  & 
W.  481. 

f.s)  Johnston  v.  Sumner,  3  H. 
&  X.  261. 

(I)  Thompson   v.    Hervey,    4 


HUSBAND    AND    WIFE.  73 

authority  to  run  into  extravagance,  and  give  orders  quite  beyond 
the  husband's  means.  The  cases  on  the  subject  are  numerous. 
It  has  been  held  that  a  wife  may  make  her  husband  liable  lor  the 
cost  of  exhibiting  articles  of  the  peace  against  him  (m),  but  not  of 
prosecuting  him  for  an  assault  (x).  So  he  may  have  to  pay  the 
cost  of  legal  advice  to  the  wife  respecting  an  anti-nuptial  settle- 
ment (y),  and  of  successful  divorce  proceedings  instituted  against 
him  [z).  But  he  will  not  generally  be  bound  to  repay  a  person 
who  has  lent  money  to  the  woman  (a);  and  if  she  has  induced  a 
person  to  contract  with  her  by  fraudulently  representing  herself 
to  be  unmarried,  her  husband  will  not  be  liable  (b).  On  the 
other  hand,  in  cases  where  the  wife  had  really  no  authority  to 
enter  into  a  contract,  the  husband  may  by  his  conduct  ratify  and 
accept  the  responsibility  of  it  (c). 

The  wife's  authority  to  pledge  her  husband's  credit  is  not  greater  ^ra(j  jjQg. 
when  her  husband  is  mad  than  when  her  husband  is  sane.  Where,  band, 
however,  the  husband  before  his  insanity  has  held  out  his  wife  as 
his  agent  to  give  orders  on  his  behalf,  a  tradesman,  who  continued 
to  supply  goods  by  order  of  the  wife,  and  in  ignorance  of  the  in» 
sanity,  could  recover  the  price  of  the  goods  against  the  husband. 
See  Drew  v.  Nunn,  L.  R.  4  Q.  B.  D.  661  {d). 

It  may  be  remarked  that,  to  make  the  man  liable  on  the  wo-  Cohabita- 
man's  contracts,  it  is  not  necessary  that  the  strict  relationship  of  tion. 
husband  and  wife  should  exist  between  them.  The  presumption 
of  authority  arises  whenever  a  man  and  woman  are  cohabiting,  if  he 
allows  her  to  assume  his  name  and  treats  her  as  part  of  his  fam- 
ily, and  it  is  no  answer  to  show  that  the  plaintiff  knew  they  were 
not  married  (e). 

The  case  of  Smout  v.  I/berry  is  a  well-known  and  sometimes  Blades  v 
criticised  authority.     Thirteen  years  before  in  Blades  v.  Free  (/)  Free, 
it  had  been  held  that  the  executors  were  not  liable  in  such  a  case. 


(u)  Turner  v.  Rookes,  10  Ad.  son  v.  Wood,  32  L.  J.  Ch.  400 

&  E.  47.  (b)  Liverpool  Adelphia  Loan 

(a;)   Grindell   v.  Gobmond,  5  Ass.  v.  Fairhurst,  9  Ex.  422,  and 

Ad.  &  E.  755.  WTright  v.  Leonard,  11  C.  B.,  N. 

(y)  Wilson  v.  Ford,  L.  R.  3  Ex.  S. ,  258. 

63.  ( c)  Waithman  v.  Wakefield,  1 

(z)  Ottaway  v.  Hamilton,  3  C.  Camp.  121. 

P.  D.  393.  (d)  Richardson  v.  Dubois,  L. 

(a)  Knox  v.  Bushell,  3  C.  B.,  R.  5  Q.  B.  51. 

N.  S. ,  335 ;  but  see  Harris  v.  Lee,  (e)  Watson  v.  Threlkeld,2  Esp. 

1  P.Wrms.  482;  Jenner  r.Morris,  637. 

30,L.  J.  Ch.  361;  Deare  v.  Sout-  (/)  9  B.  &  C.  167. 
ten,21  L.  T., N.S., 523  and  David- 


74  EXTENT  OF  AGENT'S  AUTHORITY. 


Extent  of  Agent' s  Authority. 

[33.]  COX  v.  MIDLAND  COUNTIES  RAILWAY  CO. 

[3  Exch.  263  (1849).] 

A  labourer  named  Higgins  took  a  ticket  for  the  par- 
liamentary train  from  "Whittington,  near  Birmingham. 
As  he  was  getting  in,  the  guard  signalled  the  train  to 
start,  the  consequence  of  which  was  that  Higgins  fell, 
and  the  wheels  went  over  his  leg.  On  being  picked  up 
he  was  taken  to  a  neighbouring  public-house,  and  Mr. 
Davis,  the  local  surgeon  to  the  company,  was  sent  for. 
Mr.  Davis  came,  pronounced  it  a  bad  case,  and  sent  word 
to  the  station-master  at  Birmingham  that  he  should  like 
to  have  the  assistance  of  Mr.  Cox,  the  eminent  hospital 
surgeon  at  Birmingham.  The  station-master,  on  re- 
ceiving this  message,  sent  for  Mr.  Cox,  who  came  im- 
mediately to  "Whittington,  and  amputated  the  labourer's 
leg. 

This  action  was  on  "  assumpsit  for  work  and  labour 
as  a  surgeon,"  and  the  question  was  whether  the  sta- 
tion-master had  power  to  bind  the  company  to  such  a 
contract.  It  was  held  that  he  had  no  such  power. 
"Though  it  might  be  a  benefit,"  said  the  court,  "to  the 
master  to  have  the  damage  diminished  by  a  speedy  cure, 
if  he  was  really  liable  for  that  damage,  it  would  be  a 
prejudice  to  him  to  be  bound  to  pay  if  he  was  not;  and 
is  the  servant  to  decide  whether  his  master  is  liable  or 
not — a  man  whom  he  has  not  appointed  with  any  view 
to  the  exercise  of  such  a  discretion?  We  think  the 
servant  has  clearly  no  such  power.  The  employer  of 
an  agent  for  a  particular  purpose  gives  only  the  author- 
ity necessary  for  that  agency  under  ordinary  circum- 
stances  It  would  be  a  serious  inconve- 
nience to  the  public  if  the  rule  of  law  as  appplicable 
not  merely  to  railway  companies,  but  to  all   partner- 


EXTENT  OF  AGENT'S  AUTHORITY.  75 

ships  and  individuals,  as  to  the  extent  of  authority  given 
to  an  agent,  were  relaxed  out  of  a  compassionate  feel- 
ing, which  it  is  difficult  not  to  entertain  towards  the 
suffering  party,  the  present  plaintiff.  " 

Agents  are  of  two  classes,  general  and  particular.     A  general  General  and 
agent  is  one  whom  his  principal  has  placed  in  a  certain  posi-  particular 
tion,  and  who  must,  therefore,  he  taken,  no  matter  what  his  pri-  aSents. 
vate  instructions  may  he,  to  have  authority  to  do  all  acts  which 
are  usually  done  by  persons  filling  that  .position.     A  particular 
agent  is  one  who  is  entrusted  with  a  particular  job,  and  must 
strictly   pursue   his  instructions.     A  general  agent  may  deviate 
from  his  instructions,  and  yet  bind  his  principal  :  not  so  a  partic- 
ular agent :  persons  dealing  with  him  are  bound  at  their  peril  to 
ascertain  the  extent  of  his  authority  (g).     Thus,  a  horse  dealer's  "Warranty  of 
servant,  must  be  assumed  to  have  the  authority  to  warrant,  and  horse, 
the  master  will  be  bound  although  he  expressly  told  the  servant 
not  to  warrant ;  but  if  an  ordinary  person  tells  his  servant  to  sell 
a  horse,  and  not  to  give  a  warranty  with  it,  and  the  servant  then, 
in  defiance  of  his  orders,  does  give  a  warranty,  it  will  not  bind 
the  master  (h).     But  though  this  distinction  between  the  powers 
of  a  general  agent  and  those  of  a  particular  agent  is  perfectly 
clear  in  theory,  great  difficulty  arises  in  practice,  and  the  student 
will  only  get  a  clear  idea  of  the  subject  (if  at  all)  by  comparing  a 
score  or  two  of  the  cases. 

Though  (as  we  see  in  the  leading  case)  a  station-master  may  General 

not,  it  has  been  held  in  a  later  case  that  the  general  manager  of  manager  of 

a  railway  companv»«a«  pledge  his  masters'  credit  for  medical  ex-  rai'way  com- 

i  \  v  pany. 

penses  (i).  r     J 

The  master  of  a  ship  may  pledge  the  credit  of  his  owners  for  Master  of 
most  purposes  incidental  to  the  due  prosecution  of  the  voyage  ship. 
(k)  ;  but  the  general  manager  of  a  mine  has  no  implied  authority  Manager  of 
to  borrow  money  in  an  emergency  (I).  mine. 

A  ship's  husband  cannot  bind  his  owners  by  an  agreement  to  Ship's  hus- 
cancel  the  charter-party  (m).  band. 

In  the  recent  case  of  Payne  v.  Leconfield  (n),  it  was  held  that  Auctioneer, 
an  auctioneer  selling  ahorse  did  not  bind  his  employer  by  unau- 
thorised statements  which  he  made  respecting  it. 


(g)  Fenn  v.  Harrison,  3  T.  R.  (k)  Arthur  v.  Barton,  6  M.  & 

762.  W.  138;  Beldon  v.  Campbell,  6 

(h)  Brady  v.   Todd,  9  C.  B.,  Ex.  886. 

N.  S.,   592;  Howards.    Shew-  (/)  Hawtayne  v.  Bourne,  7  M. 

ard,  L.  R.  2  C.  P.  148,  and  Bal-  &  W.  595. 

dry  v.  Bates,  52  L.  T.  620.  («i)  Thomas  v.  Lewis,  4  Ex. 

(0  Walker  v.  G.  W.  Ry.  Co.,  Div.  18. 

L.  R.  2  Ex.  223.  (n)  30  W.  R.  814. 


76 


EXTENT  OF  AGENT'S  AUTHORITY. 


Agency  of 

uecessity. 


Agent  cannot 
employ  sub- 
agent. 

Architect 
employing 
quantity  sur- 
veyor. 

Ratification. 


Goods  sup- 
plied to  club. 


Sometimes  the  law  implies  an  authority  to  contract  for  an- 
other so  as  to  bind  him  from  the  necessity  of  the  occasion.  Thus 
in  a  case  in  which  a  man  had  sent  a  horse  down  from  King's 
Cross  to  Sandy,  but  had  not  given  any  address,  or  told  anyone  to 
meet  it,  it  was  held  that  the  railway  company  had  authority  to 
incur  livery  stable  expenses  on  behalf  of  the  owner  (o). 

An  agent  cannot  generally  employ  a  sub-agent  to  do  the  work 
of  his  agency.  There  are,  however,  exceptions  to  this  rule. 
Thus,  by  usage  of  trade,  an  architect  receives  implied  authority 
from  those  who  employed  him  to  engage  a  person  to  make  calcu- 
lations and  take  out  quantities,  and  this  person  may  claim  remu- 
neration from  the  employers  of  the  architect,  though  they  were 
unaware  of  his  existence  (p). 

Though  an  ageDt  may  have  exceeded  his  authority  in  such  a 
way  that  his  principal  is  not  bound,  still  the  principal  may,  if 
he  pleases,  ratify  the  unauthorised  contract.  Omnis  ratihabitio 
retrotrahilur  ct  mandato  priori  aequiparatur.  Very  slight  evidence 
of  ratification  is  sufficient,  but  the  principal  cannot  ratify  part 
and  repudiate  the  rest.  He  must  take  all  or  none  (q).  It  is  nec- 
essary that  the  agent  should  have  professed  to  act  as  agent  merely. 
If  he  assumed  to  act  on  his  own  account,  there  can  be  no  ratifi- 
cation. For  this  reason  (amongst  others)  it  was  held  that  a  per- 
son whose  name  had  been  forged  on  a  promissory  note  could  not 
ratify  the  act  of  the  forger,  and  accept  the  paternity  of  the  docu- 
ment (r). 

Questions  of  agency  occasionally  arise  with  regard  to  goods 
supplied  to  a  club.  In  the  case  of  a  proprietary  club,  no  one  is 
liable  except  the  proprietor  himself.  In  the  case  of  a  mem- 
bers' club,  the  committee  are  liable,  but  not  the  other  members, 
unless  it  can  be  shown  that  they  individually  assented  to  the 
orders  given,  or  authorised  the  committee  to  pledge  their  credit  (s). 

A  word  may  be  said  here  about  the  authority  of  legal  advis- 
ers. Besides  the  conduct  of  formal  proceedings,  a  solicitor  re- 
tained in  an  action  has  a  general  authority  to  act  for  his  client 
in  matters  of  discretion  within  his  province.  He  can,  for  in- 
stance, waive  irregularities,  and  can  refer  or  compromise  an  ac- 
tion. A  solicitor  stands  on  a  different  footing  from  a  barrister, 
because  if  he  goes  wrong,  he  can  be  sued  for  his  negligence  or 
unskillfulness,  while  a  barrister  (at  present)  cannot.     The  great 


(o)  G.  N.  Ry.  Co.  v.  Swaffield, 
L.  R.  9  Ex.  132. 

{p)  Moon  v.  Witney  Guar- 
dians, 3  Bing.  N.  C.  817.  But, 
of  course,  in  the  case  put  the 
plaintiff  would  have  clearly  to 
prove  the  custom,  and  it  is  be- 
lieved that  some  doubt  exists 
on  that  point,  see  also  Skinner 
v.  Weguelin,  1  C.  &  E.  12. 


(q)  Hovil  v.  Pack,  7  East, 
1G4. 

{>■)  Brook  v.  Hook,  L.  R.  6 
Ex.  89. 

(s)  Cullen  t*.  Queensbwrv,  1 
Br.  P.  C.  101  ;  Flemvng  v. 
Hector,  2  M.  &  W.  172  ;  Todd 
v.  Emly,  7  M.  &.  W.  427. 

(0  1  C.  B,  N.  S.  364. 


FRAUD    OF    AGENT.  77 

cases  of  Swinfen   v.  Swinfen  (/),  unci  Swinfen  r.  Lord  Chelms- 
ford (u),  should  be  consulted  on  the  whole  of  this  subject. 


Responsibility  of  Principal  for  Fraud  of  Agent. 

OORNFOOT  r.  FOWKE!  [34.] 

[6  M.  &  W.  358  (1840).] 

In  this  case  a  Leicestershire  baronet  had  been  terri- 
bly taken  in  about  a  house.  The  agent  who  showed  it 
him  had  made  a  mis-statement  about  it,  but  in  perfec; 
good  faith ;  and  there  had  been  equal  good  faith  on  the 
part  of  his  principal.  This  being  so,  it  was  held  that 
the  baronet  could  not  get  out  of  his  agreement  on  the 
ground  of  fraud.  "I  think  it  impossible,"  said  Alder- 
80D,  B.,  "to  sustain  a  charge  of  fraud,  when  neither 
principal  nor  agent  has  committed  any:  the  principal, 
because  though  he  knew  the  fact,  he  was  not  cognizant 
of  the  misrepresentation  being  made,  nor  even  directed 
the  agent  to  make  it;  and  the  agent,  because,  though 
he  made  a  misrepresentation,  yet  he  did  not  know  it  to 
be  one  at  the  time  he  made  it,  but  gave  his  answer 
bond  fide." 

It  should  be  stated,  however,  that  Lord  Abinger,  C.B  , 
in  a  learned  and  exhaustive  judgment,  dissented  from 
the  view  of  the  majority,  sayiDg  that  it  was  "a  matter 
that  appeared  to  him,  but  for  their  opinion,  too  plain 
to  admit  of  a  doubt." 

It  is  far  from  chimerical  to  suppose  that  the  case  of  Corn  foot  v.  Leadingcases 
Fowke  will. some  day  be  overruled  in  favour  of  the  view  there  uu-  °*  doubtful 
successfully  contended  for,  and  of  the  principle  that  if  a  man,  '  ^' 

having  no  knowledge  whatever  on  the  subject,  takeson  himself  to 
represent  acertain  state  of  facts  to  exist,  he  does  so  at  his  peril  (a?). 

(m)  5  H.  &  N.  890.  (.r)  See  Fuller  v.  Wilson,  3  Q. 

B.  58. 

7   COMMON   LAW. 


78 


FRAUD    OF    AGENT, 


bat  not  quite  The  recent  case  of  Ludgater  i\  Love  (y)  (where  the  principal's  son 
overruled   by  innocently  said  what  his  scoundrel  of  a    father  told  him  to  say 
Ludgater  v.     about  the  condition  of  some  sheep  he  was  selling)  is  undoubtedly 
another  nail  in  the  coffin  of  the  leading  case,  but  Ludgater  v. 
Love  is  to  be  distinguished  from  Cornfoot  v.  Foukc  on  the  ground 
that  in  the  former  case  the  jury  expressly  found  that  the  defend- 
ant fraudulently  concealed  from  his  son  that  the  sheep  had  the  rot, 
with  a  view  to  his  representing  them  as  sound  and  getting  the 
»  best  price  for  them. 

Fraud  of  But  whatever  doubt  there  may  be  as  to  the  liability  of  a  fraud- 

agent  fraud  ulent  principal  for  the  acts  of  an  innocent  agent,  there  would 
principal.  seem  to  be  none  now  as  to  the  liability  of  an  innocent  principal 
for  the  fraud  of  his  agent.  In  such  cases,  the  fraud  of  the  ayent 
is  the  fraud  of  the  principal,  so  that  the  latter  cannot  take  any  ad- 
vantage or  benefit  from  it,  and,  on  the  other  hand,  is  liable  to  an 
action  for  it.  For  authority  for  this  proposition,  the  student  may 
refer  to  the  cases  of  Udell  v.  Atherton,  7  H.  &  N.  172;  Barwick 
v.  English  Joint  Stock  Bank,  L.  R.  2  Ex.  259;  Blake  v.  Albion 
Life  Assurance  Society,  4  C.  P.  D.  94;  Swift  v.  Jewsbury, 
L.  Pt.  9  Q.  B.  301;  Weir  v.  Bell,  3  Ex.  Div.  238;  Mackay  v.  Com- 
mercial Bank  of  New  Brunswick,  L.  R.  5  P.  C.  394;  Swire  v. 
Francis,  3  App.  Ca.  106;  Chapleo  v.  Brunswick  Building  Society, 
6  Q.  B.  D.  G9G;  Mullens  v.  Miller,  52  L.  J.  Ch.  380;  and  Baldry 
v.  Bates,  52  L.  T.  620. 

Bribes  to  An  agent  is  not  allowed  to  make  a  surreptitious  profit  out  of 

agents  his  agency,  but  must  account  to  his   employer  for  everything  he 

receives.  Nor  can  he  maintain  an  action  to  recover  such  illegal 
profit  or  commission  from  the  person  who  has  promised  it  him. 
Moreover,  if  I  catch  my  agent  selling  me  to  the  other  side  in  this 
way — no  matter  how  many  abominable  trade  customs  can  be  pro- 
duced in  support  of  such  dishonesty — I  am  generally  entitled  to 
rescind  the  contract.  See.  on  this  subject,  the  cases  of  Panama, 
&c,  Co.  v.  Indiarubber,  &c,,  Co.,  L.  R.  10  Ch.  App.  515;  Harring- 
ton r.  Victoria  Graving  Dock  Co.,  3  Q.  B.  D.  549;  Williamson  v. 
Barbour,  9  Ch.  D.  529;  Bagnall  v.  Carlton,  6  Ch.  D.  371;  and 
Metropolitan  Bank  v.  Heiron,  5  Ex.  D.  319. 


(y)  44  L.  T.,  N.  S.  634. 


UNDISCLOSED  PRINCIPALS.  79 


Undisclosed  Principals,  &c. 

PATERSON  r.  GANDASEQUI.  [35.] 

[15  East,  G2  (1812).] 

Gandasequi,  an  enterprising  Spanish  merchant,  made 
up  his  mind  that  the  foreign  market  could  do  with  some 
silks  and  satins.  He  accordingly  set  sail  for  England, 
and,  on  reaching  London,  went  to  Larrazabal  and  Co., 
certain  agents  in  the  City,  and  commissioned  them  to 
buy  a  quantity  of  goods  for  him.  Larrazabal  and  Co. 
proceeded  to  execute  the  commission,  and  asked  Pater- 
eon  and  Co.,  a  great  hosiery  firm,  to  send  certain  speci- 
fied articles  with  terms  and  prices.  Now,  Paterson  and 
Co,  knew  Larrazabal  and  Co.,  and  had  perfect  confidence 
in  them,  but  Gandasequi  they  did  not  know,  and  had 
no  confidence  jn.  Therefore,  though  they  sent  the  goods 
and  though  they  knew  perfectly  well  that  they  were 
really  for  Gandasequi,  and  that  Larrazabal  and  Co.  were 
merely  his  agents  in  the  matter,  yet  for  all  that  they 
booked  the  goods  as  sold  to  Larrazabal  and  Co.  This 
was  unfortunate,  because  it  happened  that  Gandasequi 
was  really  a  more  substantial  person  than  his  agents, 
who  shortly  afterwards  became  bankrupt.  Paterson  was 
not  disposed  to  be  content  with  the  fraction  of  his  debt, 
which,  as  a  creditor  in  bankruptcy,  he  might  have  got 
from  Larrazabal  and  Co.,  and,  with  the  laudable  object 
of  getting  the  whole  of  his  money,  sued  Ganda.-:equi. 

But  it  was  held  that,  if  the  seller  of  goods  knows  that 
the  person  he  deals  with  is  only  an  agent  and  knows 
also  icho  his  principal  is,  and  in  spite  of  that  knowledge 
chooses  to  give  the  credit  to  the  agent,  he  must  stand 
by  his  choice,  and  cannot  sue  the  principal. 


80  UNDISCLOSED  PRINCIPALS. 

[36.]  DAVENPORT  v.  THOMSON. 

[9  P>.  &  C.  48  (1829).] 

A  person  named  McKune  carried  on  at  Liverpool  the 
business  of  a  "general  Scotch  agent."  One  day  he  re- 
ceived a  letter  from  some  clients  of  his  in  Scotland  to 
the  following  purport: — 

"  Dumfries,  29th  March,  1823. 
"  Dear  Sir, — Annexed  is  a  list  of  goods  which  you 
will  please  procure  and  ship  per  Nancy.     Memorandum, 
of  goods  to  be  shipped: — twelve  crates  of  Staffordshire 
ware,  crown  window  glass,  ten  square  boxes,  &c,  &c. 

"  Yours,  &c, 

"Thomson  and  Co." 

On  receiving  this  letter,  McKune  went  straight  to  the 
shop  of  Davenport  and  Co.,  who  were  glass  and  earth- 
enware dealers,  and  had  an  interview  with  their  head 
partner.  He  did  not  pretend  to  be  buying  for  himself. 
He  said  he  had  received  an  order  to  purchase  some  goods 
for  some  clients  in  Scotland,  but  he  did  not  mention 
their  name,  and  the  Davenports  did  not  ask  for  it.  They 
sold  about  £200  worth  of  goods  and  debited  McKune, 
though  they  knew  perfectly  well  he  was  only  an  agent. 
Then  McKune  failed  without  having  paid  Davenport 
and  Co. 

This  was  an  action  by  Davenport  and  Co.  against 
McKune's  principals,  Thomson  and  Co.,  who  denied 
their  liability  on  the  ground  that  Davenport  and  Co. 
had  debited  McKune,  and  could,  therefore,  look  only 
to  him  for  payment,  This  view,  however,  was  not  adopted 
by  the  court,  and  Thomson  and  Co.  were  made  to  pay, 
the  principle  being  that,  as  the  name  of  the  real  buyer 
had  not  been  disclosed  to  them  by  the  agent,  the  sellers 
had  had  no  opportunity  of  icriting  him  down  as  their 
debtor. 


UNDISCLOSED  PKINCIPALS.  81 

The  chief  rules,  relating  to  transactions  with  an  agent,  who  Three  cardi- 
acts  with  authority  to  bind  his  principal,  are  these: —  mil  rules. 

1.  If  you  contracted  with  a  man  whom  you  know  to  be  an 
agent,  and  who  names  his  principal  to  you  at  the  time  of  the 
contract,  there  is  prima  facie  no  contract  at  all  with  the  agent. 
The  principal  is  the  proper  person  to  sue  and  to  be  sued.  Of  course 
the  agent  may,  if  lie  chooses,  render  himself  liable  as  a  contract- 
ing party,  or  there  may  from  the  very  nature  of  the  case  be  also 
a  remedy  against  him,  as  where  he  himself  has  an  interest  in  the 
subject-matter  of  the  contract.  And  it  may  be,  as  we  have  seen, 
that  credit  may  be  given  to  the  agent,  and  to  the  agent  alone,  to 
the  exclusion  of  all  remedy  against  the  principal. 

There  is,  however,  an  exception  to  the  general  rule,  founded  on  Foreign  mer- 

public  convenience  of  mercantile  usuages,  namely,  that  where  a  cnant  buying 

°Dods  in 
merchant  abroad  buys  goods  in  England  through  an  agent,  the  En<rian(i 

seller,  in  the  absence  of  evidence  of  express  authority  to  the  agent  through 
to  pledge  his  foreign  constituent's  credit,  contracts  with  t/i£  agent,  agent, 
and  there  is  no  contract  or  privity  between  him  and  the  foreign 
principal  (z). 

There  may  also  be  noticed  a  technical  rule  that  those  persons  Indentures, 
only  can  sue  or  be  sued  upon  an  indenture,  who  are  described  in 
it  as  parties  thereto  (a).  And  in  consequence  of  this  rule,  when 
a  deed  purports  to  be  the  deed  of  the  agent  (b),  and  the  princi- 
pal is  not  named  as  a  party,  the  latter  cannot  sue  or  be  sued 
upon  the  indenture.     • 

2.  When  you  deal  with  a  man  whom  you  know  to  be  an  agent, 
but  who  does  not  name  his  principal  to  you  at  the  time  of  the 
contract,  the  agent  in  prima  facie  liable  on  the  contract  as  well  as 
the  principal,  since  you  cannot  be  expected  to  give  credit  exclu- 
sively to  a  person  whose  very  name  is  unknown  to  you.  But 
where  it  clearly  appears  on  the  face  of  the  contract  that  the 
agent  is  not  pledging  his  personal  credit,  although  he  may  not 
disclose  the  name  of  his  principal,  still  upon  a  contract  so  framed 
the  agent  could  not  be  personally  liable.     Evidence  of  custom 

would,  however,  be  admissible  (c)  to  show  that  it  was  intended  Evident  0f 
that  the  agent  should  himself  be  bound.    Thus,  where  a  charter-  custom  ad- 
party  was  expressed  to  be  made  (<7)  between  the  plaintiffs  and  missible  to 
the  defendants  "as  agents  to  merchants,"  and  the  defendants'  charge  agent, 
signature  to  the  contract  was  expresed  to  be  by  them  "  as  agents  to 
merchants."  evidence  was  tendered  on  the  part  of  the  plaintiffs, 
and  admitted,  of  a  trade  usage  that,  if  the  principal's  name  is 
not  disclosed  within  a  reasonable  time  after  the  signing  of  the 

(2)  Hutton  v.  Bulloch,  L.  R.  (c)  Humfrey  v.   Dale,   E.  B. 

9  Q.  B.  572,  and  Die  Elbinger,  &  E.  1004. 

&c,  v.  Claye,  L.  K.  8  Q.  B.  313.  (d)   Hutchinson   v.    Tatham, 

(a)  Southampton  v.  Brown,  L.  K.  8  C.  P.  482;  and  Hutclie- 
6  B.  &  C.  718.  son  v.  Eaton,  L.  R.  13  Q.  B.  D. 

(b)  In  re  Pickering's  claim,  861. 
L.  R.  6  Ch.  Ap.  525. 


UNDISCLOSED    PRINCIPALS. 


Signing 
without 
qualtfication 


Agent  may 
limit  his 
responsi- 
bility. 


Election 
within 
reasonable 
time  after 
discovery. 


Agent  con- 
tracting dis- 
tinctly as  if 

principal. 


Charter-party,  in  such  case  the  brokers  shall  be  personally  liable. 
Evidence,  however,  would  not  have  been  admitted  to  prove  a 
cust  in  that  the  defendant  should  be  liable  under  all  circum- 
stances, inasmuch  as  that  would  be  to  contradict  the  document 
itself,  and  not  merely  to  add  a  term  which  is  not  inconsistent 
with  any  term  of  the  contract  (dd). 

When  a  man  signs  a  contract  in  his  own  name  without  any 
qualification,  even  although  in  the  body  of  the  document  there 
may  be  some  expressions  tending  to  show  that  he  is  acting  for 
another,  he  must  nevertheless  be  taken  to  have  intended  to  bind 
himself  as  principal  (e).  In  order  to  exempt  himself  he  must 
make  it  appear  clearly  (/)  on  the  face  of  the  contract  that  he  did 
not  intend  to  be  liable  as  a  principal. 

But  the  agent  may  limit  his  responsibility  by  the  insertion  of 
special  provisions.  Thus,  in  a  well-known  case  {(/),  a  charter- 
party  was  executed  by  one  Yglesias,  as  agent  for  the  freighter, 
and  his  signature  was  unqualified,  but  the  instrument  contained 
a  proviso  that  the  agent's  liability  should  cease  as  soon  as  the 
cargo  was  shipped.  The  Court  held  that  Yglesias  was  the  con- 
tracting party  and  liable  upon  the  contract,  but  that,  neverthe- 
less, it  was  quite  competent  for  him  to  say,  "  I  am  making  this 
contract  for  an  unknown  principal,  and  I  will  not  be  liable  after 
the  cargo  is  shipped." 

3.  When' you  deal  with  a  man  who,  though  really  an  agent,  is 
not  known  by  you  to  be  such  at  the  time  that  you  enter  into  the 
contract,  the  undisclosed  principal  is,  as  a  rule,  bound  by  the 
contract,  and  entitled  to  enforce  it  as  well  as  the  agent  with 
whom  you  made  the  contract  in  the  first  instance.  But  if  you 
determine  to  sue  the  principal  on  the  contract,  you  must  make 
your  election  to  do  so  within  a  reasonable  time  after  discovering 
that  there  was  really  a  principal  behind  the  scenes  (/*);  other- 
wise you  will  be  estopped,  from  pursuing  any  remedy  except 
that  against  the  agent  with  whom  you  originally  contracted. 
So,  too,  if  you  deal  with  the  agent  so  as  to  lead  the  principal  to 
believe  that  the  agent  only  will  be  held  liable,  and  thus  preju- 
dice the  principal  in  his  relations  with  his  agent  (i). 

It  should,  moreover,  be  noticed  that  where  an  agent  has  con- 
tracted in  such  terms  as  to  lead  anyone  to  suppose  that  he  was 
himself  the  true  and  only  principal,  the  principal  cannot  come 
forward  and  take  advantage  of  the  contract  made  for  him  by  his 
agent.     In  one  case  (/•)  a  widow  brought  an  action  on  a  charter- 


(dd)  See  Barrow  v.  Dyster, 
13  Q.  B.  I).  635. 

(ej  Paice  v.  Walker,  L.  R.  5 
Ex.  17:1;  Southwell  v.  Bow- 
ditch,  1  C.  P.  D.  100;  and  Mc- 
Collin  r.  Gilpin,  (1  Q.  B.  D.  516. 

(/)  Hou.iih  v.  Manzanos,  4 
Ex.  Div.  104;  and  see  <  )i;den  v. 
Hall,  40  L.  T.,  N.  S.  751. 


(r/)  Oglesby  v.  Yglesias,  E. 
B.  &  E.  930. 

(//)  Smethurst  v.  Mitchell,  1 
E.  &  E.  622. 

(/)  Wvatt  v.  Hertford,  3 
East,  147. 

(A)  Humble  v.  Hunter,  12  Q. 
B.  310. 


UNDISCLOSED    PRINCIPALS.  83 

patty  for  freight,  &c.     She  "was  the  owner  of  n  ship  called  the  Humble  v 
Ann.     But  on  the  production  of  the  charter-party  it   appeared  Hunter. 

that  her  s  m,  who  had  acted  as  her  agent  in  the  making  thereof, 
had  signed  an  agreement  running  thus:  "  It  is  mutually  agreed 
between  C.  T.  Humble,  Esq,,  owner  of  the  good  ship  or  vessel 

called  the  Ann,  and  Jameson  Hunter,"  &c.  [twas  held  that,  as 
the  document  itself  described  the  son  as  ''owner,"  the  plaintiff 
must  he  considered  as  hound  by  this  assertion  of  title  to  the  sub- 
ject-matter of  the  contract,  and  that  she  could  not  take  the  ben- 
efit of  the  contract. 

Thero  aro  dicta  contained  in  the  judgments  i:i  Thomson  v.  Da-  Heald  v. 
venport  which  suggest  i:i  t  he  w  idest  terms  that  a  seller  is  not  en-  Kenworthy. 
titled  to  sue  the  undisclosed  principal   on  discovering  him,  if  in 
the  meantime  the  state  of  account  between  the  principal  and  the 

agent  has  been  altered  to  the  prejudice  of  the  principal. 

But  a  more  accurate  statement,  of  the  law  is  contained  in  the 
judgment  of  Parke,  15.,  in  Heald  r.  Kenworthy  (/).  "If  the  con- 
duel  of  the  seller  would  make  it  unjust  for  him  to  call  upon  the 
buyer  for  the  money,  as,  for  example,  where  the  principal  is  in- 
duced by  the.  conduct  of  the,  seller  to  pay  his  agent  the  money,  on 
the  faith  that  the  agent  and  the  seller  have  come  to  a  settlement 
on  the  matter;  or  if  any  representation  to  that  effect  is  made  hy 
the  seller,  either  by  words  or  conduct,  the  sellercannot  afterwards 
throw  off  the  mask  and  sue  the  principal."  This  was  the  view 
adopted  by  the  Court  of  Appeal  in  a  recentcase  (m)  where  thede-  Irvine  v. 
fendants  had  employed  Conning,  a  broker,  to  buy  oil  for  them.  Watson. 
The  broker  accordingly  bought  of  the  plaintiff-;,  informing  them 
at  the  time  of  the  sale  that  he  was  buying  for  principals,  though 
he  did  not  tell  them  who  those  principals  were.  The  terms  of 
the  sale  was  "cash  0:1  or  before  delivery,"  bid  there  is  no  invaria- 
ble custom  inihetradeto  insist  on  prepayment.  The  oil  was  deliv- 
ered to  Conning  by  the  plaintiffs  but  not  paid  for  and  the  de- 
fendants, not  knowing  that  the  plaintiffs  had  not  been  paid,  paid 
Conning  the  amount  due  for  the  oil.  It  was  held  that  the  fact  of 
the  defendants  having  paid  the  broker  did  not  preclude  the  plain- 
tills  from  suing  for  the  price,  unless,  before  such  payment,  they 
had  by  their  conduct  induced  the  defendants  to  believe  that  they 
had  already  been  paid  hy  the  broker.  And  the  Court  considered 
that  under  the  circumstances  the,  man's  omission  to  insist  on  pre- 
payment was  not  such  conduct  as  would  reasonably  induce  such 
belief.  So,  in  the  recent  case  of  Davidson  v.  Donaldson  (re),  where  Davison  '' 
the  action  was  brought  against  a  part  owner  of  a  ship  for  the  Donoldson. 
price  of  beef  and  stores  for  the  ship  supplied  on  the  order  of  a 
man  named  Tate,  who  was  ship's  husband  and  managing  owner, 
the  defendant  was  held  liable,  though  several  years  had  elapsed, 

(/)  10  Ex.  739.  Q.  B.  D.  51  I. 

(m)  Irvine  v.  Watson,  L.  K.  5         («)  1)  Q.  li.  D.  G'2'3. 


84  UNDISCLOSED    PRINCIPALS. 

during  which  the  plaintiff  hud  applied  to  Tate  for  payment,  and 
the  defendant  had  more  than  once  settled  accounts  with  Tate. 
"  I  think,"  said  Bo  wen,  L.  J.,  "that  the  plaintiff  must  succeed, 
on  the  ground  that  there  was  no  misleading  conduct." 


Set-off  Against  Factor*  s  Principal. 


[37,]  GEORGE  v.   GLAGETT. 

[7  T.  R.  359  (1795).] 

Messrs.  Rich  and  Heapy  carried  on  business  in  wool- 
len cloths,  not  only  on  their  own  account,  but  also  as 
factors  for  other  people;  and  as  they  carried  on  all  their 
business  at  the  same  warehouse,  it  would  not  be  obvious 
when  they  were  acting  as  principals  and  when  as  agents. 
At  the  time  of  our  story  Messrs.  Rich  and  Heapy  hap- 
pened to  have  in  their  possession  as  factors  a  large 
quantity  of  goods  belonging  to  Mr.  George,  a  clothier 
of  Frome,  which  goods  were  in  their  warehouse  along 
with  goods  belonging  to  themselves.  It  happened  just 
then  that  Messrs.  Clagett  were  in  want  of  such  goods. 
They  held  a  bill  of  exchange  for  £1200,  accepted  by 
Rich  and  Heapy,  and  as  they  saw  no  particular  likeli- 
hood of  getting  paid,  they  thought  it  would  not  be  a 
bad  plan  to  buy  goods  from  them  on  credit,  and  deduct 
the  amount  of  the  bill  from  the  purchase-money.  Messrs. 
Rich  and  Heapy,  accordingly,  sold  them  a  quantity  of 
goods,  making  out  a  bill  of  parcels  for  the  whole  in 
their  own  names,  and  Messrs.  Clagett  fully  believed  that 
they  were  dealing  with  principals.  The  goods  were 
taken  out  of  one  general  mass  in  the  warehouse,  so  that 
a  large  portion  of  them  really  belonged  to  the  clothier 
of  Frome. 

This  was  an  action  by  that  unfortunate  person  against 
Messrs.  Clagett  for  the  price  or  the  portion  of  the  goods 


SET-OFF    AGAINST    FACTOR'S    PRINCIPAL.  85 

which  belonged  to  hiin,  and  which  ho  said  Messrs.  Rich 
and  Heapy  had  sold  as  his  agents.  Messrs.  Clagett  said 
they  did  not  know  that  Rich  and  Heapy  were  his  agents 
or  anybody  else's  agents,  and  claimed  to  have  the  same 
right  of  set-off  (that  is  to  say,  of  deducting  the  above- 
mentioned  debt)  against  him  which  they  would  have 
had  against  them.  In  this  contention  they  were  sue 
cessful. 

' '  In  all  these  cases  of  set-off, ' '  says  Lord  Truro  in  a  later  case  (o),  Principle  of 
"  the  law  endeavours  to  meet  the  real  honesty  and  justice  of  the  leading  case, 
case.  Where  goods  are  placed  in  the  hands  of  a  factor  for  sale, 
and  are  sold  by  him  under  circumstances  that  are  calculated  to 
induce,  and  do  induce,  a  purchaser  to  believe  that  he  is  dealing 
with  his  own  goods,  the  principal  is  not  permitted  afterwards  to 
turn  round,  and  tell  the  vendee  that  the  character  he  himself  has 
allowed  the  factor  to  assume  did  not  really  belong  to  him.  The 
purchaser  may  have  bought  for  the  express  purpose  of  setting 
off  the  price  of  the  goods  against  a  debt  due  to  him  from  the 
seller.'' 

The  words  put  the  rule  and  its  reason  very  clearly.  And  Lord 
Truro  goes  on, — 

"  But  the  case  is  different  where  the  purchaser  has  notice  at 
the  time  that  the  seller  is  acting  merely  as  the  agent  of  another. 
In  that  case  there  would  be  no  honesty  in  allowing  the  purchaser 
to  set-off  a  bad  debt  at  the  expense  of  the  principal." 

As  to  this  last  point,  the  effect  of  the  decisions  seems  to  be  that  Means  of 

although  the  defendant  had  the  means  of  knowing  that  he  was  knowingdoes 

dealing  with  an  agent,  and  did  not  make  use  of  them,  he  is  still  n      amount 

to  actual 
entitled  to  his  right  of  set-off.   But,  of  course,  the  fact  that  a  man  knowledge 

has  ready  to  hand  the  means  of  knowing  a  thing  is  evidence,  to 

some  extent  [p),  that  he  actually  docs  know  it. 

We  see,  then,  that  if  a  factor  sells  goods  as  his  own,  and  the 

buyer  knows  nothing  of  any  principal,   the  buyer  may  set-off 

against  the  concealed  principal  any  demand  he  might  have  set-off 

against  the  factor.     But  it  has  been  held,  where  the   factor  has 

meanwhile  become  bankrupt,  that  a  mutual  credit  not  amounting  iyTutuai 

to  ordinary  set-off  could  not  be  set  up  in  an  action  brought  by  the  credit. 

unknown  principal  against  the  buyer  (5),  that  is  to  say,  that  the 

mutual  credit  clauses  of  the  bankrupt  law  did  not  apply  as  against 

the  principal.     This  decision  has  been  thought  to  establish  that 


(0)  Fish  v.  Kempton,  7  C.  B.  (p)  Borriesc.  Imp.  Ott.  Bank, 

687  ;  and  see  the  recent  case  of  L.  R.  9  C.  P.  38. 

Maspons  v.  Mildred,  30  W.   R.  (q)  Turner  v.  Thomas,  L.  R. 

862.  6  C.  P.  610. 


86 


SET-OFF    AGAINST   FACTOR'S    PRINCIPAL. 


Unliquidated 
damages. 


Warner  v. 
Mackay. 


Knowledge 
of  agent  is 
knowledge  of 
principal. 


Principle  of 
leading  case 
not  appli- 
cable to 
brokers. 


the  principle  of  George  v.  Cldtjett  does  not  extend  to  a  set-off  of 
unliquidated  damages  ;  but  it  cannot  be  extended  to  support  such 
a  wide  proposition.  The  true  deduction  would  seem  to  be  that 
the  rule  in  George  v.  Clagett  only  applies  to  what  can  be  said  to  be 
a  proximate  motive  in  dealing  with  the  factor  ;  and  the  court  was 
of  opinion  that  his  bankruptcy  and  the  mode  thereon  of  settling 
with  his  assignees  could  not  be  taken  to  be  socontemplated. 

Of  course,  where  a  factor  sells  as  factor,  the  purchaser  cannot 
set-off,  in  a:i  action  by  the  principal  for  the  price  of  the  goods,  a 
debt  due  to  him  from  the  factor.  But,  in  a  case  where  the  pur- 
chaser bond  fide  believed  (r)  that  the  factor  was  selling  to  repay 
himself  advances,  the  purchaser  was  allowed  to  set-off  payments 
on  account  made  by  him  to  the  factor.  Whatever  may  have  been 
the  ground  of  this  decision,  and  whether  or  not  it  is  capable  of 
being  supported,  it  must  not  be  taken  (s)  to  break  in  upon  the 
principles  already  stated. 

It  must,  too,  be  observed  that  where  the  buyer  employs  an  agent 
to  act  for  him  in  the  matter  of  the  purchase,  and  this  agent  of  the 
purchaser  has  knowledge  that  the  goods  are  not  the  goods  of  the 
factor,  though  sold  in  the  factor's  name,  the  knowledge  of  the 
agent,  however  acquired,  is  held  to  be  the  knowledge  of  the  buyer 
himself  (0  ;  so  that  in  an  action  by  the  factor's  principal  against 
the  purchaser  for  the  price  of  the  goods,  the  defendant  is  affected 
by  such  knowledge  of  the  agent,  and  is  not,  therefore,  entitled  to 
set-off  a  debt  due  to  him  from  the  factor  against  the  plaintiff's 
claim. 

The  principles  enunciated  above  with  regard  to  the  right  of 
set-off,  though  applicable  to  the  case  of  a  factor,  must  not  be  con- 
sidered to  apply  in  any  way  to  the  case  of  a  broker,  whose  posi- 
tion differs  from  that  of  a  factor  in  many  important  particulars. 
A  broker  is  not  trusted  with  the  possession  of  the  goods  to  be 
sold,  and  he  ought  not  to  sell  in  his  own  name  (m).  The  princi- 
pal, then,  who  trusts  a  broker  has  a  right  to  expect  that  he  will 
not  sell  in  his  own  name,  and  the  purchaser  could  not  well  he  led 
to  believe  that  the  broker  was  the  actual  owner  of  the  goods, 
which  were  to  form  the  subject-matter  of  the  sale. 

In  Stevens  v.  Biller  (>)  it  was  held  that  an  agent  who  is  en- 
trusted with  the  possession  of  goods  for  the  purpose  of  sale  does 
riot  lose  his  character  of  factor,  or  the  right  of  lien  attached  to  it, 
by  reason  of  his  acting  under  special  instructions  from  his  princi- 
pal to  sell  the  goods  at  a  particular  price  and  to  sell  in  the  prin- 
cipal's name.     "A  factor,"  said  Cotton,  L.J.,  "can  sell  iD   his 


(r)  Warner  v.  Mackay,  1  M. 
&  W.  591. 

(.<*)  See  per  Cresswell,  J.,    in 
Fish  r.  Kempton.  sup. 

(t)  Dresser  v.  Norwood,  17  C. 


B.r  N.  S.,  574. 

(u)  Baring  v.  Corrie,  3  B.  & 
Aid.  137. 

(x)  25  Ch.  Div.  31. 


SET-OFF    AGAINST    FACTORS    PRINCIPAL.  87 

own  name  as  against  his  principal  whatever  restrictions  there 
may  he  in  his  instructions.  It  is  not  essential  for  the  purpose  of 
giving  him  a  general  lien  that  he  should  he  free  from  any  restric- 
tion as  to  the  name  in 'which  he  shall  sell  the  goods.  No  cases 
were  cited  hefore  us  for  such  a  proposition,  and  a  case  was  cited 
before  Mr.  Justice  Chitty  to  the  contrary — ex  parte  Dixon  (y). 
That  case  shows  that  if  a  factor  sells  in  his  own  name,  although 
contrary  to  the  instructions  of  his  principal,  it  will  give  a  right 
of  set-off  as  between  the  purchaser  and  factor;  it  will  not  take 
away  his  character  of  factor.-' 

This  appears  to  he  a  convenient  place  to  mention  the  existence  Factors  Act. 
of  certain  Acts  called  the  Factors  Acts  (.r).  In  a  recent  case  [a)  in 
the  House  of  Lords  Lord  Blackburn  observed  that  the  old  com- 
mon law  rule,  that  no  man  could  confer  a  greater  title  than  he 
himself  had,  has  been  found  in  modern  practice  to  be  inconve- 
nient to  its  full  extent  in  commercial  transactions,  especially  since 
the  practice  of  advancing  money  upon  the  security  of  goods  and 
merchandise  came  to  be  so  important  as  it  is;  and  that,  therefore, 
it  had  been  found  necessary  to  introduce  modifications  of  that 
principle  into  the  law  of  this  country.  "These  modifications  were 
introduced,'  continued  his  lordship,  "by  the  Factors  Acts,  which 
define,  and  regulate,  and  show  to  what  extent  the  modifications 
are  given.  They  at  once  modify  the  law  and  show  how  far  it  is 
to  be  modified.  It  is  sufficient  to  state  briefly  that  the  decision 
in  Cole  c.  The  North  Western  Bank  (b)  conies  to  this,  that  an  Cole  v.  North 
agent  who  can  pledge  or  sell  must  bean  agent  of  that  class  which,  Western 
like  factors,  taking  almost  the  words  of  Willes,  J.,  in  Heyman  v.  Bank. 
Flewker  (c),  "have  a  business  which,  when  carried  to  its  legiti- 
mate result,  would  properly  end  in  selling  or  in  receiving  pay- 
ment for  goods.  That  would  be  a  kind  of  class,  factors  and  agents 
in  the  class  of  factors.  If  such  a  person  is  entrusted,  and  is  en- 
trusted in  that  capacity,  then,  in  the  absence  of  bad  faith  on  the 
part  of  the  pledgee,  the  pledge  is  good.  If  it  is  not,  you  must 
fall  back  on  some  other  principle  to  make  it  good  inlaw."  It 
would  lie  impossible  in  a  work  of  this  character  to  attempt  any- 
thing  like  an  exhaustive  summary  of  the  provisions  of  the  Fac- 
tors Acts,  but  their  effect  is  thus  shortly  given  in  Chitty's  Stat- 
utes— 

"First,  where  goods,  or  documents  for  the  delivery  of  goods, 
are  pledged  as  a  security  for  present  or  future  advances  (r/).  with 
the  knowledge  that  they  are  not  the  property  of  the  factor,  but 
without  notice  that  he  is  acting  without  authority,  in  such  cases 
the  pledgee  acquires  an  absolute  lien. 


(y)  4  Ch.  Div.  133.  (b)  L.  B.  10  C.  P.  3.">4. 

(2)  G  &  7  Geo.  IV.  c.  94,  and         (c)  13  C.  B.,  N.  S.  519. 
5&G  Vict.  c.  32.  (d)  Kaltenbach  v.  Lewis,  24 

(a)    City  Bank  v.   Barrow,  5  Ch.  D.  54. 
A  pp.  Ca.  667. 


88  SET-OFF   AGAINST    FACTOR'S    PRINCIPAL. 

"Secondly,  where  goods  are  pledged  by  the  factor,  without  no- 
tice to  the  pledgee  that  they  are  the  property  of  another,  as  a  se- 
curity for  a  pre-existing  debt,  in  that  case  the  pledgee  acquires 
the  same  right  as  the  factor  had. 

"Thirdly,  where  a  contract  to  pledge  is  made  in  consideration 
of  the  delivery  of  the  goods  or  documents  of  title  upon  which 
the  person  delivering  them  up  had  a  lien  for  a  previous  advance 
(which  is  deemed  to  be  a  contract  for  a  present  advance),  in  that 
case  the  pledgee  acquires  an  absolute  lien  to  the  extent  of  the 
value  of  the  goods  given  up." 

The  principle  of  these  Acts  has  been  extended  by  a  recent 
statute  (e),  which  affords  further  protection  to  innocent  pledgees 
and  purchasers  from  factors.  It  amends  the  law  with  respect  to 
the  secret  revocation  of  entrustment  or  agency,  and  places  a 
vendor  who  is  permitted  to  retain  the  documents  of  title  (/)  in 
the  position  of  an  agent  under  the  former  Factors  Acts.  There 
is,  too,  a  similar  provision  with  regard  to  vendees  who  have  been 
permitted  to  obtain  possession  of  the  documents  of  title;  and  the 
transfer  of  a  document  of  title  to  a  person  who  takes  the  same 
bond  fide,  and  for  valuable  consideration,  is  to  have  the  same  ef- 
fect for  defeating  a  vendor's  lien  or  right  of  stoppage  in  transitu, 
as  the  transfer  of  a  bill  of  lading  has  for  defeating  the  right  of 
stoppage  in  transitu. 


Agent  exceeding  Authority  Liable  in  Contract. 


[38.]  OOLLEN  r.  WRIGHT. 

[8  E.   &  B.  G47  (1857).) 

Mr.  "Wright  was  the  land  agent  of  a  gentleman  named 
Dunn  Gardner,  and,  professing  to  have  authority  to  do 
so,  he  made  an  agreement  with  a  Mr.  Collen  for  the  lease 
to  him  for  twelve  and  a-half  years  of  a  farm  of  Dunn 
Gardner's.  On  the  strength  of  this  agreement  Collen 
entered  on  the  enjoyment  of  the  farm;  but  he  soon 
found   that   there   was  a  serious   difficulty  in   the  way. 

(e)  40  &  41  Yict.  c.  39.  (f)  Johnson  v.  Credit  Lyon- 

nais  Co.,  3  C.  P.  D.  32. 


AGENT  EXCEEDING  AUTHORITY.  89 

Mr.  Dunn  Gardner  refused  to  execute  any  such  lease, 
saying  that  he  had  never  authorised  Mr.  Wright  to  agree 
for  a  lease  for  so  long  a  term;  and  this  proved  to  be 
the  fact. 

This  was  an  action  by  the  disappointed  farmer 
against  the  executors  of  the  agent  "who  had  led  him 
wrong,  and  the  main  question  was  whether  Wright's 
assuming  to  act  as  Dunn  Gardner's  agent  to  grant  the 
lease  amounted  to  a  contract  on  his  part  that  he  had 
such  authority.  This  was  the  view  ultimately  adopted, 
so  that  Wright's  executors  became  liable  to  Collen. 

When  a  man  enters  into  a  contract  representing  himself  as 
agent  for  a  person  named  at  the  time  the  contract  was  made,  the 
law  will  not  allow  him  to  shift  his  position  and  sue  as  principal 
on  the  contract,  "declaring  himself  principal  and  the  other  a 
creature  of  straw."  This  was  clearly  laid  down  in  Bickerton  v.  Bickerton  v. 
Burrell  (</),  where  the  plaintiff  had,  at  a  sale  hy  auction,  signed  Burrell. 
a  memorandum  of  purchase  as  agent  for  a  named  principal,  and, 
then,  in  an  action  to  recover  the  deposit  he  had  paid  to  the  auc- 
tioneer, sought  to  give  evidence  that  he  was  really  the  principal 
in  the  matter.  It  is  true  that  a  Court  of  Equity  (h)  has  taken  a 
view  adverse  to  the  decision  in  Bickerton  v.  Burrell,  but  the  au- 
thority of  the  cas%  in  Equity  has  been  much  questioned. 

It  must,  too,  be  carefully  noticed  that,  when  the  contract  has  Acceptance 
been  in  part  performed  by  the  plaintiff  acting  as  an  agent  (/),  and  of  part  per- 
that  part  performance  has  been  accepted  by  the  defandant  with  ">rmance. 
full  knowledge  that  the  plaintiff  was  not  the  agent  but  the  real 
principal,  then  the  action  is  clearly  maintainable. 

The  true  principal  of  the  cases  would  seem  to  be,  that,  on  the 
professed  agent  giving  the  other  party  notice  of  his  real  position 
before  action  brought,  it  is  open  to  the  other  party  either  to 
repudiate  the  contract  altogether,  or  to  ratify  it  expressly  in 
words  or  impliedly  by  his  conduct. 

Although  the  circumstances  may  be  such  that  the  professed  Agent  liable 
agent  cannot  sue  upon  the  contract,  nevertheless,  as  we  have  seen  as  on  implied 
from  Collen  v.  Wright,  he  is  liable  for  the  damages  sustained  by  warranty. 
reason  of  the  assertion  of  authority  being  untrue      He  cannot  in- 
deed, be  sued  upon  the  contract  itself,  but  he  is  liable  on  an  im- 
plied warranty  of  authority, 

(g)  5  M.  &  S.  383.  (/)  Rayner  v.  Grote,  15  M.  & 

(A)  Fellows    v.    Gwydyr,    1     W.  359. 
Euss.  &  M.  83. 


90 


AGENT  EXCEEDING  AUTHORITY. 


No  principal 
really  exist- 


Ratification. 


Agent  not 
disclosing 
name  of 
principal. 


Cases  often  arise  -where  a  contract  is  signed  by  one  who  professes 
to  be  signing  "as  agent  "  for  a  named  principal,  but  where  ihcre 
is  mi  such  "principal  existing  at  the  time,  so  that  the  contract  would 
be  altogether  inoperative  unless  binding  upon  the  person  who 
signed  it;  as,  e.g.,  where  the  alleged  principal  is  entirely  ficti- 
tious,  or  where  a  man  enters  into  an  engagement  on  behalf  of  a 
company  which  has  not,  at  the  time  of  the  contract,  obtained  any 
legal  existence  {k).  In  such  cases,  the  professed  agent  is  person- 
ally bound  by  the  contract,  it  being  assumed,  on  the  principle 
ut  res  magis  valeat  quam  pereat,  that  it  was  in  the  contemplation 
of  the  parties  at  the  time  of  the  making  of  the  contract  that  the 
person  signing  it  would  be  bound  thereby.  Moreover,  in  such 
cases,  there  would,  as  a  general  rule,  seem  no  reason,  in  the  ab- 
sence of  fraud,  why  the  professed  agent  should  not  sue  on  the 
contract  in  his  own  name,  at  any  rate  in  the  respect  of  executed 
contracts. 

But,  it  must  be  noticed  that,  when  there  is  no  principal  in 
existence  at  the  time  of  the  contract,  there  can  be  no  subsequent 
ratification.  Thus,  in  an  action  (7)  on  a  cheque  drawn  by  the 
promoters  of  a  company  before  the  company  had  acquired  any 
legal  existence,  it  was  sought  to  relieve  the  promoters  from  re- 
sponsibility by  showing  a  subsequent  ratification  and  adoption  by 
the  company.  This  contention  was,  however,  unsuccessful,  as 
"ratification  can  only  be  by  a  person  ascertained  at  the  time  of 
the  act  done,  by  a  person  in  existence  either  actually  or  in  con- 
templation of  law." 

There  yet  remains  one  case  of  professed  agency  to  be  considered, 
namely,  where  a  man  holds  himself  out  as  agent,  but  does  not 
make  known  the  name  of  his  alleged  principal  ;  as,  where  (m)  a  char- 
ter-party was  expressed  to  be  made  between  the  defendant  as 
owner  of  the  ship  of  the  one  part  and  "G.  Schmaltz  &  Co.  (agents 
of  the  freighters)  of  the  other  part."  It  was  held  that  notwith- 
standing the  terms  of  the  charter-party.  Schmaltz  &  Co.  might 
prove  that  they  were  in  reality  the  freighters  and  their  own  prin- 
cipals; and,  on  proof  of  their  being  so,  were  entitled  to  recover 
in  their  own  name.  And,  con  versely,  no  doubt,  Schmaltz  &  Co. 
might  have  been  sued  on  the  contract,  on  proof  being  given  that 
they  were  really  the  principals  in  the  transaction.  "We  have  seen 
from  the  notes  to  Paterson  v.  Gandasequi  that  had  there  been  in 
truth  any  freighters  behind  the  back  of  Schmaltz  &Co.,  this  firm 
could  neither  have  sued  nor  been  sued  on  the  charter-party,  in« 
asmuch  as  the  document  was  framed  so  as  to  exclude  the  per- 
sonal liability  of  the  so-called  agents. 


(k)  Kelner  v.  Baxter,  L.  R.  2     P.  255. 


C.  P.  174. 


(I)  Scott  v.  Ebury,  L.  R.  2  C.     B.  655. 


(m)  Schmaltz  v.  Avery,  16  Q. 


AGENT  EXCEEDING  AUTHORITY.  91 

It  was  sought,  in  a  recent  case  (»),  to  extend  the  principle  of  Dick:Son  v. 
Collen  v.   Wright  to  support  an  action  for  damages  caused  by  the  Reuter's 
negligence  of  the  defendants,  a  telegram  company,  who  delivered  Telegraph 
to  the  plaintiff  a  telegram  ordering  a  large  shipment  of  barley,  ^oml)any- 
no  such  message  having  been  in  fact  sent  to  the  plaintiff.     It  was 
held  that,  inasmuch  as  the  erroneous  statement  was  not  fraudu- 
lent, and  there  was  no  duty  owing  by  the  defendants  to  the  plain- 
tiffs in  the  matter,  no  action  would  lie. 

"The  general  rule  of  law,"  said  Bramwell,  L.J.,  "  is  clear, 
that  no  action  is  maintainable  for  a  mere  statement,  although  un- 
true, and  although  acted  on  to  the  damage  of  the  person  to  whom 
it  is  made  unless  that  statement  is  false  to  the  knowledge  of  the 
person  making  it But  then  it  is  urged  that  the  deci- 
sion in  Collen  v.  Wright  has  shown  that  there  is  an  exception  to 
that  general  rule,  and  it  is  contended  that  this  case  comes  within 
the  principle  of  that  exception.  I  do  not  think  that  Collen  v. 
Wright,  properly  understood,  shows  that  there  is  an  exception  to 
that  general  rule.  Collen  v.  Wright  establishes  a  separate  and 
independent  rule,  which,  without  using  language  rigorously  ac- 
curate, may  be  thus  stated;  if  a  person  requests  and,  by  assert- 
ing that  he  is  clothed  with  the  necessary  authority,  induces  an- 
other to  enter  into  a  negotiation  with  himself,  and  a  transaction 
with  the  person  whose  authority  he  represents  that  he  has,  in 
that  case  there  is  a  contract  by  him  that  he  has  the  authority  of 
the  person  with  whom  he  requests  the  other  to  enter  into  the 
transaction.  That  seems  to  me  to  be  the  substance  of  the  deci- 
sion in  Collen  v.  Wright.  If  so,  it  appears  to  me  that  it  does  not 
apply  to  the  facts  before  us,  because,  in  the  present  case,  I  do  not 
find  any  request  by  the  defendants  to  the  plaintiffs  to  do  any- 
thing. The  defendants  are  simply  the  deliverers  of  what  they 
say  is  a  message  from  certain  persons  to  the  plaintiffs.  No  con- 
tract exists  :  no  promise  is  made  by  the  defendants,  nor  does  any 
consideration  move  from  the  plaintiffs.  It  appears  to  me,  therefore, 
that  there  is  a  distinction  between  this  case  and  Collen  v.  Wright, 
and  consequently  we  cannot  have  recourse  to  that  case  to  take 
this  out  of  the  general  rule  to  which  I  have  referred." 

(n)  Dickson  v.  Reuter's  Telegraph  Co.,  3  C.  P.  D.  1. 


92 


GOODS    PRIVILEGED    FROM   DISTRESS. 


Goods  privileged  from  Distress. 

[39.]  SIMPSON  v.  HARTOPP. 

[Willes,  512  (1744).] 

John  Armstrong  was  a  stocking-weaver  of  Leicester, 
and  rented  a  small  cottage  of  the  defendant  Hartopp. 
Early  in  1741  he  hired  a  stocking- frame  from  the  plain- 
tiff Simpson  at  a  few  shilling  a  week  for  the  purposes 
of  his  trade.  About  the  end  of  the  year  he  got  behind- 
hand with  his  rent,  and  Hartopp  distrained  on  him. 
There  was  not  much  for  the  bailiffs  when  they  came; 
indeed,  so  little  that  there  was  not  enough  to  satisfy 
the  rent  in  arrear  without  carrying  off  Simpson's  stock- 
ing-frame. This  was  done,  although  "  the  said  John 
Armstrong's  apprentice  was  then  weaving  a  stocking  on 
the  said  frame." 

Simpson  afterwards  brought  an  action  of  trover  for 
the  stocking- frame,  and  succeeded  in  getting  it  restored 
to  him;  for  a  landlord  has  no  business  to  distrain  what 
is  actually  in  use. 


Landlord  a 

favoured 
creditor. 


All  goods 
found  may  be 
taken. 


Two  classes 
of  things 
privileged. 

(1.)  Absolute 
privilege. 

Things  in 
actual  use. 


If  a  tenant  does  not  pay  his  rent  according  to  his  contract,  his 
landlord  has  this  advantage  over  other  creditors,  that,  without 
having  to  seek  the  assistance  of  a  court  of  law,  he  may  walk 
straight  down  to  the  premises  in  the  tenant's.occupation,  and 
carry  away  sufficient  goods  to  satisfy  the  debt.  This  summary 
and  anomalous  method  of  getting  one's  rights  is  called — not  in- 
appropriately, from  the  tenant's  point  of  view — distress. 

The  general  rule  is  that  all  personal  chattels  found  on  the  de- 
mised premises  can  be  distrained  for  rent.  Simpson  v.  Hartopp 
introduces  us  to  the  exceptions  to  the  rule. 

The  student  should  divide  the  exceptions  into  two  classes: — 

1.  Things  absolutely  privileged. 

2.  Things  conditionally  privileged. 

1.  Some  things  are  absolutely  privileged  from  distress;  under  no 
circumstances  can  they  be  taken.     Such  things  are 

(1.)   Things  in  actual  use. 

The  obvious  reason  why  such  things  cannot  be  taken  is  that  to 
try  and  do  so  would  probably  lead  to  a  breach  of  the  peace.     Bather 


GOODS    PRIVILEGED    FROM    DISTRESS.  93 

a  nice  point  may  some  day  arise  as  to  whether  clothes  merely  taken 
off  for  natural  repose  are  "  in  actual  use  "  or  not  (o). 

(2.)  Fixtures 
cannot  he  taken,  hecause  damage  would  be  done  to  the  freehold  in  Fixtures. 
tearing  them  away.     And  mere  temporary  removal  of  fixtures, 
however,   for  purposes  of  necessity  will  not  destroy  the  privi- 
lege  (})).     Nor  can  keys,  charters,  &c,  he  taken  (q). 

At  common  law,  cocks  and  sheaves  of  corn  and  other  farm  pro-  Corn  and 
duce,  and  growing  crops  could  not  he  distained;  but  were  ahso-  growing 
lutely  privileged.  By  an  Act  of  William  and  Mary  (r),  any  per-  ct0^a- 
son  having  rent  in  arrear  and  due  upon  any  demise,  lease,  or 
contract,  may  seize  and  secure  any  sheaves  or  cocks  of  corn,  or 
corn  loose  or  in  the  straw,  or  hay  lying  or  being  in  any  barn  or 
granary,  or  upon  any  hovel,  stack  or  rick,  or  otherwise  upon  any 
part  of  the  laud  or  ground  charged  with  such  rent,  and  lock  up  or 
detain  the  same  in  the  place  where  the  same  shall  be  found,  for, 
or  in  the  nature  of,  a  distress,  until  the  same  shall  be  replevied  or 
sold ;  but  the  same  must  not  be  removed  from  such  place  to  the 
damage  of  the  owner.  This  Act  of  William  and  Mary,  however, 
did  not  give  the  landlord  a  right  to  distrain  growing  corn  or 
crops,  but  an  Act  with  that  object  was  passed  in  George  the 
Second's  reign.  11  Geo.  II.,  c.  19,  ss.  8  and  9,  authorises  him  to 
seize  "  all  sorts  of  corn  and  grass,  hops,  roots,  fruits,  pulse,  or  other 
products  tvhatever,  ichich  sliall  be  growing'1''  on  any  part  of  the 
estates  demised  or  holden,  "and  the  same  to  cut,  gather,  make, 
cure,  carry,  and  lay  up,  when  ripe,  in  the  barns,  or  other  proper 
place" — on  the  premises,  if  possible;  if  not,  as  near  thereto  as 
practicable.  It  is  to  be  observed  that  this  statute  of  George  the 
Second  extends  only  to  crops  which  become  "ripe,"  and  which 
when  ripe  are  "laid  up,"  and  that  they  must  not  be  taken  before 
they  are  ripe.  In  Clarke  v.  Gaskarth  (.?),  it  was  held  that  young 
trees,  shrubs,  and  plants  growing  in  a  nursery  ground  could  not 
be  distrained  as  they  were  not  ejusden  generis  with  the  "pro- 
ducts" specified  in  the  8th  section  of  the  Statute  of  George. 
Notice  of  the  place  where  the  distress  is  lodged  is  to  be  given  to 
the  tenant  within  a  week  of  the  lodgment. 

The  grantee  of  a  rent  charge  cannot  take  growing  crops  under 
11  Geo.  II.,  c.  19,  but  he  can  take  hay  or  straw  loose  or  in  the 
stack  {t). 

(3.)  Goods  delivered  to  a  person  in  the  way  of  his  trade   (tl).  Trade. 

(o)  See  Bissett  v.   Caldwell,  2  Q.  B.  925;  Miller  v.  Green,  2 

Peake  50,  and  Bavnesr.  Smith,  Cr.  &  J.  143;  and  4  Geo.  II.  c. 

1  Esp.  206.  28,  s.  5. 

(p)  Gorton  v.  Falkner,  4  T.  (It)   See  the  recent  case  of 

R.  567.  Clarke  r.  Mill  wall  Dock  Com- 

(q)  Hellawell  v.  Eastwood,  6  pany,  53  L.   T.   316,  where  a 

Ex.  295.  ship  while  building  was  held 

(r)  2  W.  &M.  sess.  1,  c.  5,  s.  3.  liable  to  be  distrained  by  the 

(s)  8  Taunt,  431.  shipbuilder's  landlord   though 

it)  See  Johnson  v.  Faulkner,  belonging  to  a  third  person. 

8   COMMON   LAW. 


94 


GOODS    PRIVILEGED    FROM   DISTRESS. 


Perishable 
•roods. 


Wild 
animals. 


Goods  in 
custody  of 
law. 


The  ground  of  this  exemption  is  public  policy,  which  requires 
that  no  unnecessary  impediments  shall  be  thrown  in  the  way  of 
trade  and  commerce.  But  the  goods  must  be  on  the  x>remises  of 
the  person  exercising  the  trade,  or  they  will  not  be  privileged  («). 
Thus,  if  you  entrust  a  horse  to  an  innkeeper,  so  long  as  it  re- 
mains on  the  inn  premises,  the  innkeeper's  landlord  cannot  touch 
it;  but  if  the  innkeeper  removes  it  to  a  friend's  stable  half  a 
mile  off,  it  is  not  privileged  as  against  that  person's  landlord  (x). 

The  Agricultural  Holdings  Act,  1883,  (y),  on  the  holdings  to 
which  that  Act  applies,  gives  absolute  protection  against  distress 
for  rent  to  '•agricultural  or  other  machinery  which  is  the  bond 
fide  property  of  a  person  other  than  the  tenant,  and  is  on  the 
premises  of  the  tenant  under  a  bond  fide  agreement  with  him  for 
the  hire  or  use  thereof  in  the  conduct  of  his  business,  and  live 
stock  of  all  kinds  which  is  the  bond  fide  property  of  a  person 
other  than  the  tenant,  and  is  on  the  premises  of  the  tenant  solely 
for  breeding  purposes." 

(4.)  Perishable  goods 
cannot  (unless  by  statute)  be  taken,  because  they  cannot  be  re- 
stored in  the  same  plight,  and  at  common  law  a  distress  is  a 
mere  pledge.  Thus  the  flesh  of  animals  lately  slaughtered  can- 
not be  distrained  (z).  Nor  can  money,  unless  in  a  bag,  so  that 
the  same  identical  coins  may  be  recovered  (a). 

(5)  Animals  ferse  naturae; 
because  no  one  has  any  valuable  property  in  them.     But  animals 
ferse  naturae  in  a  state  of  confinement  and  civilization  (e.g.,  dogs, 
deer  in  a  park,  birds  in  cages,  &c. )  are  distrainable  {b). 

(6.)  Goods  in  the  custody  of  the  law. 

Thus,  goods  which  have  been  distrained  damage  feasant,  or 
taken  in  execution,  are  not  distrainable  (c).  But  fraudulent  and 
irregular  executions  will  not  prevent  a  distress  (rf),  and  it  has 
been  held  that  the  exemption  does  not  extend  to  goods  in  the 
custody  of  a  messenger  under  a  fiat  in  bankruptcy  (e).  More- 
over, by  14  &  15  Vict.  c.  25,  s.  2  (which  was  passed  in  order  to 
reverse  the  law  as  laid  down  in  Wharton  v.  Naylor)  (/),  grow- 
ing crops  seized  and  sold  by  the  sheriff  under  an  execution  are 
liable,  so  long  as  they  remain  on  the  land  to  be  distraned  for  the 
rent  which  becomes  due  after  the  seizure  and  sale,  if  there  is  no 
other  sufficient  distress.     See  also  56  Geo.  III.,  c.  50. 


(tt)  Lyons  v.  Elliott,  1  Q.  B. 
D.  210;  and  see  Tapling  v.  Wes- 
ton, 1  C.  &  E.  99. 

(x)  Crosier  v.  Tomkinson,  2 
Ld.  Ken.  439. 

(y)  46  &  47  Vict.  c.  61. 

(z)  Morley  v.  Pincombe,  2 
Ex.  101. 

(a)  1  Roll.  Abr.  667;  2  Bac. 
Abr.  109. 


(b)  Davies  v.  Powell,  Willes, 
48;  and  see  Reg.  v.  Shickle,  L. 
R.  1  C.  C.  R.  158. 

(c)  Peacock  v.  Purvis,  2  Bro. 
&  B.  362. 

(d)  Blades  v.  Arundale,  1  M. 
&S.  711. 

(e)  Briggs  v.  Sowry,  8  M.  & 
W.  729. 

(/)  12  Q.  B.  673. 


GOODS  PRIVILEGED  FROM  DISTRESS.  95 

(7.)   The  goods  of  an  ambassador  (g).  Ambassa- 

(8.)   The  goods  of  a  lodger ;  %  dors. 

by  virtue  of  an  Act  (A)  passed  in  1871.  The  object  of  this  Act  Lodgers, 
was  to  prevent  poor  persons  from  having  their  homes  broken  up, 
and  their  goods  and  chattels  carried  off,  because  other  people  did 
not  pay  what  they  owed.  The  Act  doos  not  define  a  "lodger," 
and  the  omission  has  led  to  a  good  deal  of  litigation  (f)  with  which 
it  is  not  worth  while  to  trouble  the  student.  If  the  lodger's 
things  have  been  seized,  he  must  write  out  a  declaration  and  an 
inventory,  and  serve  the  landlord  with  the  document.  If  he  does 
that  in  the  proper  way,  complying  faithfully  with  the  require- 
ments of  the  Act,  he  will  get  his  things  back.  See,  however, 
Thwaites  v.  Wilding  (k)  where  Bowen,  L.J.,  said  "I  think  it  is 
clear  that  a  lodger  is  relieved  only  when  the  terms  of  the  Lodgers 
Goods  Protection  Act  have  been  rigidly  complied  with.  A  lodger 
must  make  a  fresh  declaration  each  time  that  a  distress  is  levied 
on  his  goods.  A  declaration  made  at  the  time  of  levying  one 
distress  will  not  protect  him  against  a  second  and  subsequent  dis- 
tress. The  statute  is  not  for  the  benefit  of  the  lodger  alone  ;  the 
superior  landlord  is  to  enjoy  a  correlative  benefit ;  he  is  to  receive 
in  part  discharge  of  his  claim  payment  of  any  rent  which  may  be 
due  from  the  lodger  to  his  immediate  landlord.  The  declaration 
required  from  the  lodger  must  state  that  the  goods  seized  are  his, 
and  whether  any  and  what  rent  is  due  from  him.  The  property 
in  the  goods  seized  may  vary  from  time  to  time,  and  the  state  of 
account  between  the  lodger  and  his  immediate  landlord  may  vary 

in  like  manner When  a  fresh  distress  is  levied,  it  must 

be  met  by  a  fresh  declaration." 

(9.)  Frames,  looms,  &c,  used  in  the  icoollen,  cotton  or  silk  manu-  Looms. 
/natures  (I). 

(10.)   Gas  meters  belonging  to  a  gas  company  incorporated  by  Act  Qas  meters. 
of  Parliament  (m). 

(11.)  Railway  rolling  stock  in  any  tvorks  not  belonging  to  the  ten-  Railway 
ant  of  the  works  (n).    '  rolling  stock. 

2.  Certain  other  things  are  privileged  conditionally.     They  can  (2.)  Condi- 
be  taken,  but  only  when  there  are  not  sufficient  other  goods  on  tional  privi- 
the  premises  to  satisfy  the  landlord's  claim.     Such  things  are        e^e' 

( 1 . )   Tools  of  trade ;  Tools. 

e.g.,  a  navvy's  pickaxe,  a  doctor's  stethoscope,  a  stocking  weaver's 

(g)  7  Ann.  c.  12,  s.  3.  where  it  was  held  that,  if  no 

(A)  34  &  35  Vict.  c.  79.  rent   was   due   from  a   lodger, 

(/')  See  Morton  v.  Palmer,  51  the  declaration   need  not  state 

L.  J.  Q.  B.  D.  7  ;  Ness  v.  Steph-  the  fact,  nor  need  it  state  that 

enson,  L.  R.  9  Q.  B.  245  ;  Hea-  the  declarant  was  a  lodger. 

wood  v.  Bone,  13  Q.  B.  D.  179;         (/)  6  &  7  Vict.  c.   40,  ss.    18 

and  Phillips  v.  Henson,  3  C.  P.  and  91. 

D.  26.  (m)    Gasworks   Clauses   Act. 

(k)  12  Q.  B.  D.  7  ;  but  see  ex  1847  (10  Vict.  c.  15),  s.  14. 

parte  Harris,  16  Q.  B.   D.   130,         (»)  35  &  36  Vict.  c.  50,  s.  3. 


90 


(JOODS    PRIVILEGED    FROM    DISTRESS. 


Beasts. 


Agricultural 
Holdings 
Act,  1883. 


"Milk  for 
meat." 


Trespass 
ab  initio. 


frame,  or  a  lawyer's  "  Leading  Cases."  It  would  be  contrary  to 
public  policy  to  take  the  means  whereby  a  man  lives  (o).  (Of 
course,  if  the  lawyer  were  actually  leading  his  law-book,  or  the 
doctor  using  his  surgical  instrument,  such  things  would  be  abso- 
lutely privileged  as  being  in  actual  use.) 

Ledgers,  day-books,  vouchers,  and  other  business  papers  are 
not  distrainable  (p). 

(2.)  Beasts  of  the  plough  and  sheep  (q). 

But  colts,  steers,  and  heifers  are  not  priviledged  (r)  ;  and  beasts 
of  the  plough  may  be  distrained  if  the  only  other  subject  of  dis- 
tress is  growing  crops  (s).  Moreover,  beasts  of  the  plough  can  be 
distrained  for  poor-rates,  whether  there  are  other  things  on  the 
premises  or  not  (t). 

The  45th  Section  of  the  Agricultural  Holdings  Act,  1883  (w), 
protects  the  live  stock  of  a  third  person  brought  on  to  a  holding 
to  which  the  Act  applies  to  be  fed  at  a  fair  price,  provided  that  there 
is  other  sufficient  distress  which  can  be  taken.  The  "fair price" 
need  not  be  in  money.  In  the  London  and  Yorkshire  Bank  ik 
Belton  (x)  cows  were  agisted  on  the  terms  "milk  for  meat." — 
i.e.,  that  the  agister  should  take  their  milk  in  exchange  for  their 
pasturage — and  it  was  held  that  the  agistment  was  within  the 
Act.  "The  question  is,"  said  Lord  Coleridge,  C.J..  "what  is 
the  meaning  of  the  words  'fair  price.'  Putting  aside  pedantic 
and  scholastic  refinements  and  derivations,  '  price '  in  ordinary 
colloquial  language  does  not  always  mean  money,  and  '  fair  price' 
does  not  always  mean  'coin  of  the  realm.'  We  say  that  a  man 
got  something  and  paid  a  fair  price  for  it  without  meaning  that 
he  paid  as  many  pounds,  shillings  and  pence,  but  meaning  only 
that  he  paid  a  fair  equivalent,  for  what  he  got."  "  I  cannot  gather 
from  the  section,"  said  Mathew,  J.,  "the  slightest  hint  of  an  in- 
tention in  the  legislature  to  confine  the  provision  to  cases  where 
contracts  of  agistment  shall  be  for  money  and  money  only." 

The  effect  of  taking  privileged  goods  is  to  make  the  distrain- 
ing landlord  a  trespasser  ab  initio.  But  where  part  only  of  the 
goods  distrained  are  privileged,  he  is  a  trespasser  ab  initio  in  re- 
spect of  that  part  only  (y). 

Generally,  a  distress  cannot  be  levied  elsewhere  than  on  the  ten- 
ant's premises  (z).  But  if,  while  his  rent  is  in  arrear.  he  "fraudu- 


(o)  Gorton  v.  Falkner,  4  T. 
R.  555. 

(p)  Woodf.  Landl.  &  Ten., 
12th  ed.,  p.  419. 

(q)  See  51  Hen.  III.  stat.  4. 

(r)  Keen  v.  Priest,  4  H.  &  X. 
236. 

(s)  Piggott  v.  Birtles,  1  M.  & 
W.  441. 


{{}  Hutchins  v.  Chambers,  1 
Burr.  579. 

(m)  46  &  47  Vict.  c.  61. 

(x)  15  Q.  B.  D.  457. 

(y)  Harvev  v.  Pocock,  11  M. 
&  W.  740. 

(z)  Capel  v.  Buzzard,  8  B.  & 
C.  141 ;  but  see  Gillingham  v. 
Gwyes,  16  L.  T.  640. 


GOODS    PRIVILEGED    FROM    DISTRESS.  9? 

lently  or  clandestinely"  (a)  removes  his  goods,  to  prevent  a  dis-  Fraudulent 
tress,  his  landlord  may  within  30  days  after  such  removal  follow  removal  of 
and  take  them  from  the  place  to  which  they  have  been  removed  (b).  goods. 
If,  however,  before  getting  at  them,  the  goods  have  been  sold  to 
a  bond  fide  purchaser  for  valuable  consideration,  he  will  be  too 
late  (c).  In  Gray  v.  Stait  (d)  it  was  held  that  a  landlord  could 
not  follow  and  distrain  his  tenant's  goods  which  had  been  fraud- 
ulently removed  to  prevent  a  distress  for  rent  due,  if  at  the  time 
of  the  distress  the  tenant's  interest  in  the  demised  premises  had 
come  to  an  end  and  he  was  no  longer  in  possession.  '  'The  stat- 
ute 11  Geo.  2,  c.  19,  s.  1,"  said  Bowen,  L.J.,  "allows  a  distress 
upon  goods  fraudulently  removed,  only  where  a  distress  could 
have  been  lawfully  made  if  they  had  remained  upon  the  demised 
premises.  The  argument  for  the  defendants  is  not  assisted  by 
the  provisions  of  8  Anne,  c.  14,  ss.  6,  7;  these  enactments  merely 
provide  that  the  goods  of  the  tenant  may  be  distrained  after  the 
expiration  of  the  tenancy  whilst  he  remains  in  possession. ' ' 


Agricultural  Fixtures,  &c. 


ELWES  v.  MAW.  [40.3 

[3  East,  38  (1802).] 

The  question  in  this  ease  was  whether  the  tenant  of 
a  farm  in  Lincolnshire  was  entitled,  at  the  expiration 
of  his  lease,  to  demolish  and  cart  away  a  beast  house, 
a  carpenter' s-house,  a  pigeon  house  and  other  fixtures 
he  had  put  up.  It  was  held  that  he  could  not  do  this, 
and  that  they  became  the  landlord's. 

The  Agricultural  Holdings  Act  of  1883  (d)  has  considerably 
extended  the  rights  of  agricultural  tenants  to  remove  fixtures. 
The  34th  section  of  that  Act  is  as  follows : — 

"Where  after  the  commencement  of  this  Act  a  tenant  affixes  to 

(o)  The  word  connecting  these  cealment,  Opperman  r.  Smith, 

adverbs  being  "or,"  not  "and,"  4  Dowl.  &  R.  33. 
it  has  been  held  that  a  landlord         (b)  11  Geo.  2,  c.  19. 
is  justified  under  the  statute  in         (c)  Sec.  2. 
following  goods  removed  with-         (d)  11  Q.  B.  D.  668. 
out  the  slightest  attempt  at  con-         (c)  46  &  47  Vict.  c.  61. 


98  AGRICULTURAL    FIXTURES,    ETC. 

his  holding  any  engine,  machinery,  fencing,  or  other  fixture,  or 
erects  any  building  for  which  he  is  not  under  this  Act  or  other- 
wise entitled  to  compensation,  and  which  is  not  so  affixed  or 
erected  in  pursuance  of  some  obligation  in  that  behalf  or  instead 
of  some  fixture  or  building  belonging  to  the  landlord,  then  such 
fixture  or  building  shall  be  the  property  of  and  be  removable 
by  the  tenant  before  or  within  a  reasonable  time  after  the  termi- 
nation of  the  tenancy. 
"Provided  as  follows: — 

"(1.)  Before  the  removal  of  any  fixture  or  building  the  tenant 
shall  pay  all  rent  owing  by  him,  and  shall  perform  or  satisfy  all 
other  his  obligations  to  the  landlord  in  respect  to  the  holding. 

"(2.)  In  the  removal  of  any  fixture  or  building  the  tenant  shall 
not  do  any  avoidable  damage  to  any  other  building  or  other  part 
of  the  holding. 

"(3.)  Immediately  after  the  removal  of  any  fixture  or  building 
the  tenant  shall  make  good  all  damage  occasioned  to  any  other 
building  or  other  part  of  the  holding  by  the  removal. 

"(4. )  The  tenant  shall  not  remove  any  fixture  or  building  with- 
out giving  one  month's  previous  notice  in  writing  to  the  land- 
lord of  the  intention  of  the  tenant  to  remove  it. 

"(5.)  At  any  time  before  the  expiration  of  the  notice  of  re- 
moval the  landlord,  by  notice  in  writing  given  by  him  to  the 
tenant,  may  elect  to  purchase  any  fixture  or  building  comprised 
in  the  notice  of  removal,  and  any  fixture  or  building  thus  elected 
to  be  purchased  shall  be  left  by  the  tenant,  and  shall  become  the 
property  of  the  landlord,  who  shall  pay  the  tenant  the  fair  value 
thereof  to  an  incoming  tenant  of  the  holding;  and  any  difference 
as  to  the  value  shall  be  settled  by  a  reference  under  this  Act,  as 
in  case  of  compensation  (but  without  appeal)." 
Non-agricu-         Fixtures  erected  for  purposes  of  Irade,  ornament,  or  domestic  use 
tural  fixtures  may,  as  a  rule,  be  freely  removed  by  the  tenant.     But  in  Buck- 
may  gener-      jamj  v   Butterfield  (e)  (which  may  be  considered  the  leading  case 
moved  on  ornamental  and  domestic  fixtures)  it  was  held  that  a  tenant 

Buckland  v     was  not'  entitled  to  remove  a  conservatory.     As  Dallas,  C.J.,  Said 
Butterfield      in  that  case,  the  right  of  the  tenant  to  remove  an  ornamental  fix- 
ture "must  depend  on  the  particular  case."     As  to  shrubs,  box 
borders,  &c,  an  ordinary  tenant  cannot  remove  such  things,  but 
a  nurseryman  may  (/). 
Fixtures  On  the  whole,    then,    as  between   landlord    and    tenant,  the 

must  be  re-     maxim  liquicquid  plantatur  solo,  solo  cedil  "  has  lost  much  of  its 
moved  dur-     pristine  force  and  application.     But  the  tenant  must  take  care  to 
°  '-    remove  his  fixtures  during  the  tenancy  (</),  even  though  the  lease 

(e)  2  Bro.  &  Bing.  54.  2  East  88. 

(/)  Empson  v.  Soden,  4  B.  &  (g)  Lyde  v.  Russell,  1  B.  & 
Ad.  655,  and  Pentou  v.  Kobart,     Ad.  394. 


AGRICULTURAL    FIXTURES,    ETC.  90 

determines  by  forfeiture  and  not  by  effluxion  of  time  (It);  other- 
wise, the  law  will  presume  that  he  intended  to  make  a  present 
of  them  to  his  landlord. 

As  between  heir  and  executor,  however,  the  law  is  more  as  it  Ifeir  and 
used  to  be;  for  the  house  or  land  cannot  be  ruthlessly  stripped  of  executor. 
fixtures  which  add  materially  to  its  enjoyment.     But  exceptions 
to  the  rule  are  said  to  exist  in  the  case  of  trade  fixtures  (t),  and 
generally  of  those  fixtures  put  up  for  ornament  or  convenience 
which  can  be  removed  without  disfiguring  the  house  (k). 

As  between  vendor  and  vendee,  a  sale  of  the  freehold  carries  Vendor  and 
with  it  the  fixtures,  unless  there  is  an  express  provision  to  the  vendee, 
contrary  (/). 

As  between  outgoing  and  incoming  tenant,  there  is  generally  Outgoing  and 
an  agreement  by  the  latter  (which  need  not  be  in  writing)  (in)  to  incoming 
take  the  fixtures  at  a  valuation.     To  this  agreement  it  is  desira-    enan  ■ 
ble  that  the  landlord  should  be  a  party;  otherwise  he  might  say 
that  the  outgoing  tenant  had  forfeited  them  to  him  by  not  re- 
moving them,  and  so  the  incoming  tenant  would  not  be  able  to 
remove  them  at  the  end  of  his  term. 

The  folloAving  definition  of  a  fixture  has  the  approval  of  the  "What  is  a 
Queen's  Bench  in  a  case  (n)  where  the  question  was  whether  cer-  fixture, 
tain  colliery  railways  were  exempt  from  distress  as  beingfixtures: — 

"It  is  necessary,  in  order  to  constitute  a  fixture,  that  the  arti- 
cle in  question  should  be  let  into  or  united  to  the  land,  or  to  some 
substance  previously  connected  with  the  land.  It  is  not  enough 
that  it  has  been  laid  upon  the  land  and  brought  into  contact  with 
it;  the  definition  requires  something  more  than  mere  juxtaposition, 
as  that  the  soil  shall  have  been  displaced  for  the  purpose  of  re- 
ceiving the  article,  or  that  the  chattel  should  be  cemented  or  oth- 
erwise fastened  to  some  fabric  previously  attached  to  the  ground." 

It  may  be  remarked,  however,  that  there  can  be  a  "construe-  Constructive 
tive  annexation."      Keys,  heirlooms,  charters,  deeds,  fish,  &c,  annexation, 
are  considered  for  most  purposes  to  be  annexed  to  the  freehold. 

By  way  of  further  illustration  of  this  subject,  the  student  might 
refer  to  the  recent  case  of  Wake  v.  Hall  (o)  where  the  right  of  a 
miner  under  the  High  Peak  Mining  Customs  and  Mineral  Courts 
Act,  1851  (14  &  15  Vict,  c:  94),  as  against  the  surface  owner,  to 
remove  buildings  erected  for  mining  purposes,  was  discussed,  and 
the  maxim  " quicquid plantatur,  etc.,"  was  held  inapplicable  . 


(h)  Pugh  v.  Arton,  L.  R.  8Eq.  (/)  Colegrave  v.  Dios  Santos,  2 

626.  B  &  C.  76. 

(?)  See  Lawton  v.  Lawton,  3  (m)  Hallen  r.  Runder,  1  C.  M. 

Atk.  14,  and  Trappesi*.  Harter,  &  R.  266;  and  Lee  v.  Gaskell,  1 

2  C.  &  M.  153.  Q.  B.  D    700. 

(k)  Beck  v  Rebow,  1  P.  Wins.  (n)  Turner  v.  Cameron,  L.  R. 

94 ;  but  see  Cave  v.  Cave,  2  Vern.  5  Q.  B.  306. 

508.  (o)  8  App.  Ca.  195. 


100  LEASEE  NOT  IN  WRITING. 


Leases  for  more  than  Three  Years  not  in 
Writing. 


[41.]  RIGGE    v.  BELL. 

[5T.  R.  441  (1793).] 

By  parol  merely,  Rigge  let  Hague's  Farm  in  York- 
shire to  Bell  for  seven  years,  and  Bell  entered  and  paid 
rent.  But  the  tenant  did  not  give  satisfaction,  and 
Rigge  determined  to  get  rid  of  him.  By  the  terms  of 
the  agreement  Bell  was  to  go  out  at  Candlemas;  but 
Rigge's  view  was,  as  the  lease,  being  for  more  than  three 
years,  and  yet  not  in  writing,  as  the  Statute  of  Frauds 
required,  operated  merely  as  a  tenancy  at  will,  he  could 
make  the  man  quit  when  he  pleased,  and  was  not  bound 
by  the  terms  they  had  agreed  on.  In  this  view  he  found 
himself  mistaken,  for  it  was  held  that,  "though  the 
agreement  be  void  by  the  Statue  of  Frauds  as  to  the 
duration  of  the  lease,  it  must  regulate  the  terms  on  which 
the  tenancy  subsists  in  other  respects,  as  to  the  rent,  the 
time  of  the  year  when  the  tenant  is  to  quit,  &c. 


[42.]  CLAYTON  v.  BLAKEY. 

[8  T.  R.  3  (1799).] 

Ey  parol  merely,  Mr.  Clayton  let  Blakey  some  land 
for  twenty-one  years,  and  Blakey  entered  and  paid  rent. 
Two  or  three  years  afterwards  his  landlord  gave  him  no- 
tice to  quit,  and,  as  he  treated  such  notice  with  supreme 
contempt,  sued  him  for  double  rent  for  holding  over. 
To  this  claim  Blakey  raised  the  somewhat  cool  defence 
that  (by  virtue  of  section  1  of  the  Statute  of  Frauds, 
which  directs  that  any  lease  for  more  than  three  years 
not  reduced  into  writing  shall  operate  only  as  a  tenancy. 
at  will)  he  was  only  a  tenant  at  will,  and  ought  to  have 


LEASES    NOT    IN    WRITING.  101 

been  so  described  in  the  plaintiff's  declaration.  It  was 
held,  however,  that  Blakey  was  not  a  tenant  at  will,  but 
a  yearly  tenant,  and  therefore  the  plaintiff's  pleading 
was  good  enough  to  hit  him. 

The  decision  in  Clayton  v.  Blakey  seems  at  first  sight  rather  ex- 
traordinary.    The   Statute  of  Frauds  (sees.  1  and  2)  distinctly 
says  that  all  leases  by  parol  for  more  than  three  years  shall  be 
tenancies  at  will  only.     The  decision  intervenes  and  says,   "No, 
they  shall  be  yearly  tenancies,"  thus  putting  the  tenant  in  abetter 
position  than  the  statute  left  him  in.     The  accepted  explanation 
is  that  the  statute's  intention  merely  was  that  the  estate  should  Explanation 
be  an  estate  at  will  to  begin  with,  but  that,  when  once  created,  it  of  Clayton  r. 
should  be  liable,  like  any  other  estate  at  will,  to  be  changed  into  Blakey. 
a  tenancy  from  year  to  year  by  payment  of  rent  or  anythingshow- 
ing  an  intention  to  create  a  yearly  tenantcy;  if,  however,  there 
were  no   circumstances  showing  such  an    intention,   the  estate 
would  remain  an  estate  at  will. 

These  decisions  are  not  affected  by  8  &  9  Vict.  c.  106,  s.  3;  and 
as  to  the  position  of  a  tenant  holding  under  an  agreement  for  a 
lease  but  before  the  execution  of  the  lease,  see  Walsh  v.  Lonsdale, 
L.  R.  Ch.  D.  9. 

A  tenancy  at  will  is  an  estate  in  land  determinable  at  the  wil1  Tenancy  at 
either  of  landlord  or  tenant.     It  may  arise  either  by  implication  will,  how 
or  by  express  words.     In  Eichardson  v.  Langridge  ( p)  it  was  held  created, 
that  if  an  agreement  be  made  to  let  premises  so  long  as  both  par- 
tics  like,  and  reserving  a  compensation  accruing  de  die  in  diem,  and 
not  referable  to  a  year  or  any  aliquot  part  of  a  year,  a  tenancy  at  will 
is  thereby  created.     Tenancy  at  will  must  be  carefully  distin-  Tenancy  by 
guished  from  tenancy  by  sufferance,  which  is  when  a  person,  who  sufferance, 
has  originally  come  into  possession  by  a  lawful  title,  holds  pos- 
session after  his  title  has  determined. 

A  few  words  may  be  said  as  to  the  notice,  to  quit  necessary  in  Notice  to 

the  case  of  yearly  tenants.     Such  a  tenancy  may  at  common  law  quit. 

be  determined  by  half  a  year's  notice  expiring  at  that  period  of  jjalf  year's 

the  year  at  which  the  tenancy  commenced.     Where,  however,  the  notice  neces- 

tenancy  is  within  the  Agricultural  Holdings  Act,  1883  (</),  a  year's  S;UT- 

notice  is  generally  necessary.     The  33rd  section  of  that  Act  pro-      J1.       •v,:u  s 
.,.,?■  notice  neces- 

Yides  that:-  sarv  un(1(.r 

"Where  a  half-year's  notice,  expiring  with  a  year  of  tenancy  Agricultural 

is  by  law  necessary  and  sufficient  for  determination  of  a  tenancy  Holdings 

from  year  to  year,  in  the  ease  of  any  such  tenancy  under  a  con-  1  C  ' 

tract  of  tenancy  made  either  before  or  after  the  commencement 

of  this  Act,  a  year's  notice  so  expiring  shall  by  virtue  of  this  Act 

be  necessary  and  sufficient  for  the  same,  unless  the  landlord  and 

tenant  of  the  holding,  by  writing  under  their  hands,  agree  that 

(p)  4  Taunt.  128.  (q)  46  &  47  Vict.  c.  61. 


182 


LEASES    NOT    IN    "WRITING. 


Joint  ten- 
ants. 


Executors. 


Verbal  no- 
tice good. 
Construction 
of  notices. 

Alternative 
notice. 


Service  of 
notice. 


Monthly  and 
weekly  ten- 
ancies. 


this  section  shall  not  apply,  in  which  case  a  half  year's  notice 
shall  continue  to  be  sufficient;  but  nothing  in  this  section  shall 
extend  to  a  case  where  the  tenant  is  adjudged  bankrupt,  or  has 
filed  a  petition  for  a  composition  or  arrangement  with  his  cred- 
itors. ' ' 

The  construction  placed  upon  this  section  is  that  it  is  limited 
to  cases  where  a  half-year's  notice  is  by  law  necessary  to  determine 
the  tenancy,  and  has  no  application  to  cases  of  agreement  (r).  A 
notice  to  quit  given  by  one  of  several  joint  tenants  on  behalf  of 
all,  whether  with  the  authority  of  the  others  or  not,  will  put  an 
end  to  the  tenancy  (s).  So  will  notice  by  one  of  several  execu- 
tors or  administrators  on  behalf  of  all,  unless  a  joint  notice  is 
required  in  the  lease  (t).  But  notice  by  a  mere  receiver  of 
rents  is  bad  (u). 

The  notice  may  be  a  verbal  one,  though  it  had  much  better  be 
in  writing.  The  courts  are  inclined  to  construe  notices  to  quit 
liberally,  so  that  trifling  inaccurracies  will  be  overlooked  (x). 
The  great  point  is  that  the  tenant  should  not  be  able  to  mistake  the 
object  of  the  notice.  But  a  notice  in  the  alternative,  e.g.,  requir- 
ing the  tenant  cither  to  quit  or  to  pay  an  increased  rent,  will  not 
do.  If,  however,  after  telling  him  to  quit,  the  landlord  adds 
"or  I  shall  insist  on  double  rent"  the  notice  is  good  (y).  One  must 
be  a  lawyer,  perhaps,  to  appreciate  this  distinction. 

The  notice  need  not  be  served  personally.  It  may  be  left  with 
and  explained  to  a  servant  at  the  tenant's  residence  (2).  It  may 
be  put  under  a  door  (if  it  comes  into  the  tenant's  hands  within 
the  proper  time)  (a),  or  sent  through  the  post  (b).  Service  on 
one  joint  tenant  furnishes  presumptive  evidence  that  the  notice 
reached  the  other  (c).  Where  the  premises  have  been  underlet, 
the  notice  must  be  given  to  the  lessee,  not  to  the  sub-lessee  (d). 

In  the  case  of  tenancies  for  less  than  a  year,  the  length  of  the 
notice  depends  on  the  letting.  A  month's  notice  is  necessary  to 
determine  a  monthly  tenancy,  and  so  on  (c).  It  is  doubtful, 
however,  whether  any  notice  at  all  is  requisite  in  the  case  of  a 
weekly  tenancy;  certainly  not  more  than  a  week's  notice  (/). 


(r)  Barlow  v.  Teal,  15  Q.  B.D. 
501,  and  see  Wilkinson  v.  Cal- 
vert, 3  C.  P.  D.  360. 

(s)  Doe  d.  Aslin  v.  Summer- 
sett.  1  B.  &  Ad.  135. 

(0  Right  d.  Fisher  v.  Cuthell, 
5  East,  491. 

(u)  Doe  d.  Mann  r.  Walters, 
10  B.  &  C.  626.     . 

(a-)  Doe  d.  Armstrong  v.  Wil- 
kinson, 12  Ad.  &  E.  743.  and 
Doe  v.  Kightley,  7  T.  R.  63. 

(y)  Doe  d.  Matthews  v.  Jack- 
son, 1  Dougl.  175,  and  Doe  d. 
Lyster  v.  Goldwin,  2  Q.  B.  143. 


(z)  Jones  v.  Marsh,  4  T.  R. 
464;  and  see  Tanham  v.  Nich- 
olson, L.  R.  5  H.  L.  561. 

(a)  Alford  v.  Vickery,  Car.  & 
Marsh.  2S0. 

(6)  Papillon  v.  Brunton,  5  H. 
&  N.  518. 

(c)  Doe  r.  Watkins.7  East, 55? . 

(d)  Pleasant  d.  Hayton  v. 
Benson,  14  East,  234. 

(e)  Doe  d.  Parry  v.  Hazell,  1 
Esp.  94. 

(  f)  See  Jones  v.  Mills.  10  C. 
P..  N.  S.  788,  and  Huffell  v. 
Armitstead,  7  C.  &  P.  57. 


WAIVER    OF    FORFEITURES,    ET0.  1Q3 

By  4  Geo.  2,  c.  28,  s.  1,  if  a  tenant  for  life  or  years  contuma-  Holding  over 

ciously  disregards  his  landlord's  written  requirement  to  give  up  by  tenant 
the  premises  and  wrongfully  holds  over,  he  will  be  liable  to  pay  t-°ld  to  go. 
compensation  at  the  rate  of  double  the  yearly  value.  The  statute, 
however,  does  not  apply  to  weekly  tenancies  (g),  nor  (probably) 
to  a  tenancy  from  quarter  to  quarter  (A).  In  the  calculation  of 
the  double  value,  only  the  land  and  its  appurtenances  can  be  in- 
cluded; therefore  not  the  value  of  the  power  of  an  engine  let 
with  a  mill  (i). 

By  11  Geo.  2,  c.   19,  s.  18,  if  a  tenant  who  has  given  notice  him-  Holding  over 
self  holds  over  he  will  become  liable  to  pay  double  the  yearly  rent,  by  tenant 

This  statute  applies  only  to  those  cases  where  the  tenant  has  the  W7°  .      nnu~ 
„  ,   .         .    .       ,  .    ,  ,  ,.  ,  ,  sell  given  no- 

power  of  determining  his  tenancy  by  a  notice,  and  where  he  has  ^jce  0f  eointr 

actually  given  such  a  notice  (k).     But  it  applies  to  all  kinds  of 

tenancies  (/). 


Waiver  of  Forfeiture,  &c. 


DTJMPOR  v.  SYMMS.  [43.] 

(Sometimes  called  Dumpor's  Case.) 
[4  Coke,  119  (1603).] 

In  the  tenth  year  of  Elizabeth's  reign  the  College  of 
Corpus,  Oxford,  made  a  lease  for  years  of  certain  land 
to  a  Mr.  Bolde,  exacting  from  him  a  covenant  that  he 
would  not  alien  the  property  to  anybody  else  without 
the  College's  consent.  Three  years  afterwards  the  Col- 
lege by  deed  gave  him  permission  to  alien  to  anybody 
he  pleased,  and  soon  afterwards  Bolde  availed  himself 
of  this  permission  and  assigned  the  term  to  one  Tubb. 
Tubb,  after  a  brief  enjoyment  of  this  world's  goods, 
made  his  will,  devising  the  lands  to  his  son,  and  went 
over  to  the  majority.     The  son  entered,  and  also  died, 

(g)  Lloyd  v.  Rosbee,  2  Camp.  &  W.  48. 

453.  (A:)  Johnstone  v.    Hudleston, 

(h)  Sullivan  v.  Bishop,  2  C.  4  B.  &  C.  922. 

&  P.  359.  (I)  Timmins  v.  Rowlinson,  3 

(£)  Robinson  v.  Learoyd,  7M.  Burr.  1607. 


104 


WAIVER    OF    FORFEITURES,    ETC. 


but  intestate,  and  the  ordinary  granted  administration 
to  a  person  who  assigned  the  term  to  the  defendant 
Symms.  Thereupon  the  wrath  of  the  College  of  Cor- 
pus Christi  was  kindled.  Bolde  had  covenanted  with 
them  not  to  assign  without  leave,  and  such  a  covenant, 
they  said,  should  have  been  observed  by  whoever  held 
the  lands.  Therefore  they  entered  for  the  broken  con- 
dition, and  leased  to  Dumpor  for  twenty -one  years. 
Dumpor  entered,  but  Symms  re-entered,  and  for  doing 
so  Dumpor  now  brought  this  action  of  trespass  against 
him. 

Dumpor  did  not  succeed:  the  case  was  decided  against 
him  on  the  ground  that  "  if  the  lessors  dispense  with 
one  alienation,  they  thereby  dispense  with  all  aliena- 
tions after.''''  . 


Uselessness 
of  Durnpor's 
case. 


Waiver  ot 
forfeiture. 


Leaning  of 
courts 
against 
forfeitures. 

Acceptance 
of  rent. 


u  Dumpor' s  case  always  struck  me  as  extraordinary,"  said  a 
judge  in  1807  (»i).  "The  profession  have  always  wondered  at 
Dumpor's  case,"  said  another  in  1812  (»).  Yet  such  is  the  vitality 
of  error  that  Dumpor's  case  remained  the  law  of  the  land  till  1860, 
when  the  Legislature  enacted  that  "every  such  licence  should, 
unless  otherwise  expressed,  extend  only  to  the  permission  actually 
given"  (o);  and  the  next  year  another  Act  was  passed  prohibit- 
ing waivers  in  particular  instances  from  being  interpreted  to  mean 
general  waivers  (p). 

But  though,  therefore,  Dumpor's  case  is  now  of  merely  anti- 
quarian interest,  it  is  supposed  to  "  lead  "  to  the  rather  import- 
ant subject  of  waiver  of  forfeiture. 

The  courts  lean  against  forfeiture  ;  and  therefore  any  positive 
act  of  the  landlord's,  from  which  it  may  be  inferred  that  he 
elected  to  overlook  the  breach  of  covenant,  and  to  continue  the 
tenancy,  will  be  greedily  snatched  at  (q).  The  most  satisfactory 
of  the  acts  which  operate  as  a  waiver  of  forfeiture  is  acceptance  of 
rent  which  has  become  clue  since  the  forfeiture;  and  if  such  rent  is 
accepted,  it  is  of  no  consequence  that  the  landlord  took  it  under 
protest  and  declaring  that  he  did  not  intend  to  waive  the  forfeit- 
ure (r).  But  the  landlord  would  not  fix  himself  up  by  taking 
rent  due  before  the  forfeiture  (s).     When  the  landlord  has  once 


(m)  Brummell  v.  Macpherson, 
14  Ves.  175. 

(n)  Doet\  Bliss,  4  Taunt.  736. 

(o)  22  &  23  Vict.  c.  35,  s.  1. 

(p)  23&24  Vict.  c.  38  s.  6. 

(q)  Ward  v.  Day,  4  B.  &  S. 
337. 


(V)  Davenport  v.  the   Queen, 

3  App.  Ca.  115,  and  see  Croft  v. 
Lumley,  5  E.  &  B.  648. 

(s)    Marsh    v.    Curteys,    Cro. 
Eliz.  528,  and  Price  v.  Worwood, 

4  H.  &  N.  512. 


WAIVER    OF    FORFEITURES,    ETC.  ID."* 

definitely  made  his  election  either  way,  he  cannot  go  hack  from 
it;  and  so  his  receipt  of  rent  after  he  has  brought  ejectmenl  for 
a  forfeiture  comes  too  late  to  he  a  waiver  (t),  though  there  may 
be  evidence  of  a  new  tenancy  from  year  to  year  on  the  terms  of 
the  old  lease  (m).  Moreover,  the  receipt  of  rent  is  no  waiver  of 
a  continuing  breach,  e.g.,  where  the  covenant  is  to  keep  the  de- 
mised premises  in  repair  during  the  term  (x),  or  not  to  use  cer- 
tain rooms  in  a  particular  manner  (y).  There  cannot  be  a  waiver 
without  knowledge  of  the  forfeiture;  and  so  a  son  who  collected 
his  father's  rents  was  held  not  to  have  authority  to  waive  a  for- 
feiture which  the  old  man  did  not  know  had  occured  (z). 

It  is  a  very  common  condition  in  a  lease  that  the  tenant  shall  Covenant  by 
not  assign  without  his  landlord's  consent.     It  has  been  held  that  tenant  not.  to 

this  condition  is  not  broken  by  a  compulsory  assignment  bylaw;  as^Sn  wl 

,  *  out  consent, 

under  the  Bankruptcy  laws,   for  instance,  or  under  a  railway 

company's  Act  (a).  But  by  inserting  express  words  to  that  ef- 
fect in  the  lease  the  lessor  may  make  a  compulsory  assignment 
a  ground  of  forfeiture;  and  a  deed  of  assignment  in  trust  for 
creditors  registered  under  the  Bankruptcy  Act,  1861,  s.  194,  was 
held  to  work  a  forfeiture  (6).  Marriage  has  been  held  not  to  be 
a  breach  of  the  condition  against  alienation  (c);  nor  (probably) 
is  a  bequest  of  the  term  ((J).  Letting  lodgings  has  been  held  not  to 
be  a  breach  of  a  covenant  not  to  underlet  (c). 

Sometimes  the  covenant  a  tenant  enters  into  is  that  he  will  not  Consent  "not 
assign  without  his  landlord's  consent,  "such  consent  not  being  *°  De  arbitra- 
arbitrarily  withheld."     These  words,  it   has   been   held,  do   not  ,    ;y,  ,, 
amount  to  a  covenant  by  the  lessor  that  he  will  not  refuse  arbi- 
trarily, but  simply  enable  the  lessee,   if  the  lessor  refuses  his 
consent  arbitrarily,  to  assign  without  any  breach  of  covenant  (/). 

Forfeiture  for  wrongful  assignment  cannot  be  relieved  against  Reliefagain.st 
under  44  &  45  Vict.  c.  41,  s.  14.     That  section,  however,  consid-  forfeitures, 
erably  extends  the  power  of  the  court  to  relieve  against  for- 
feitures (g). 

(t)    Doe     d.     Moorecraft     v.  Tottenham  Ry.  Co.,  L.  R.  4  Eq. 

Meux,  4  B.  &  C.  606:  Jones  v.  112. 

Carter,    15  M.   &  W.  718;  and  (6)  Holland  v.   Cole,  1  H.  & 

Grim  wood  v.  Moss,   L.  R.  7  C.  C.  67. 

P.  360.  (c)  Anon.,  Moor,  21. 

(«)  Evans  v.  Wyatt,  43  L.  T.,  (d)  Foxr.  Swann,  Style,  483, 

N.  S.  176.  and  Doe  v.   Bevan,  3  M.  &  S. 

(a?)  Doe  d.  Baker  v.  Jones,  5  353. 

Ex.  498.  (e)  Doe  d.  Pitt  v.  Laming,  4 

(?/)  Doe  d.  Ambler  v.  Wood-  Camp.  77. 

bridge,  9  B.  &  C.  376.  (/)  Treloar  v.  Bigge,  L.  R.  9 

(z)  Doe  d.   Nash  v.  Birch,  1  Ex.    151,    and   Sear    v.    House 

M.  &W.  402.  Property  Co.,   43  L.   T.,   N.  S. 

(a)  Doe  d.  Mitchinson  v.  Car-  531. 

ter,  8  T.  R.  57,  and  Slipper  v.  (g)  See  Quilter  v.  Mapleson, 

9  Q.  B.  D.  672. 


106  mortgagor's  tenants. 


Mortgagor's  Tenant. 

[44.]  KEECH  r.  HALL. 

[1  Doug.  21  (1778).] 

The  owner  of  warehouse  in  the  city  mortgaged  it  to 
Mr.  Keech,  but  remained  in  possession.  Soon  after- 
wards, without  saying  a  word  to  Keech  on  the  subject, 
he  leased  it  for  seven  years  to  Hall.  Keech  was  very 
indignant  at  this.  He  said  the  mortgagor  had  ex- 
ceeded his  rights,  having  no  business  to  do  such  a 
thing  without  consulting  him,  and  that  Hall  was  no 
better  than  a  trespasser,  and  could  be  ejected  without 
notice.  And  the  judges  coincided  with  his  view  of  the 
matter. 


[45.]  MOSS  v.  GALLIMORE. 

[Dougi..  279  (1780).] 

Mr.  Harrison  began  the  year  1772  by  letting  a  house 
to  Moss  for  twenty  years  at  the  rent  of  £40  a  year. 
Times  were  bad  with  Mr.  Harrison,  and  in  May  of  the 
same  year  he  mortgaged  the  property  to  a  Mrs.  Galli- 
more.  Moss  was  not  in  the  least  affected  by  this 
mortgage  of  the  reversion.  He  went  on  quietly  living 
in  the  house,  and  paid  Harrison  his  rent  pretty  regu- 
larly up  to  November,  1778,  when  he  was  £28  behind- 
hand. At  that  time  Harrison,  having  sunk  deeper  and 
deeper  into  the  mire,  became  bankrupt,  being  at  the 
time  indebted  to  Mrs.  Gallimore  for  interest  on  the 
mortgage  in  a  sum  greater  than  £28.  Mrs.  Gallimore 
gave  Moss  notice  of  her  being  the  mortgagee,  and  told 
him  to  pay  to  her  the  £28  which  he  unquestionably  owed 
to  somebody.  Moss  showed  no  disposition  to  yield  to 
this  demand,  and  finally  the  old  lady  made  a  raid  upon 


mortgagor's  tenants.  J  07 

his  chairs  and  tables.  This  distraint  Moss  considered 
a  trespass,  and  brought  an  action  accordingly.  It  was 
held,  however,  that  Mrs.  Gallimore  was  quite  justified 
in  distraining,  for  a  mortgagee  after  giving  notice  of 
the  mortgage  to  a  tenant  in  possession  under  a  lease 
prior  to  mortgage  is  entitled  to  the  rent  in  arrears  at 
the  time  of  the  notice  as  well  as  to  what  accrues  after- 
wards, and  he  may  distrain  for  it  after  such  notice. 

The  student  will  be  able  to  distinguish  these  two  cases  by  re-  Difference 
collecting  that  the  former  has  to  do  with  leases  made  by  the  mort-  I"'1  Wl'('n  ' w" 
gagor  after  the  mortgage,  the  latter  with  leases  made   by  the      a   in8case- 
mortgagor  before  the  mortgage. 

There  is,  no  doubt,  considerable  misapprehension  among  lay-  What  is  true 
men  as  to  the  true  position  of  a  mortgagor  in  respect  of  his  power  position  of 
of  dealing  with  the  mortgaged  premises,  especially  in  regard  to  mortgagor? 
the  granting  of  leases  and  the  creation  of  tenancies.  His  position, 
of  course,  varies  according  to  the  particular  circumstances.  In  the 
case  of  a  simple  mortgage  without  any  further  agreement  or  con 
dition,  the  mortgagor  becomes  a  tenant  at  sufferance  of  the  mort- 
gagee (h)  immediately  upon  the  execution  of  the  deed  ;  but  should 
he  remain  in  possession  of  the  premises,  with  the  consent  of  the 
mortgagee,  he  is  then  held  to  be  in  the  position  of  a  tenant  at 
will.  Though  such  consent  need  not  be  express,  it  may,  how- 
ever, be  taken  that  it  cannot  be  implied  from  the  mere  fact  that 
the  mortgagee  did  not  oust  the  mortgagor  from  the  premises  di- 
rectly the  mortgage  deed  was  executed.  So  long  as  the  mortga- 
gor, remains  no  more  than  a  tenant  at  sufferance  he  is,  of  course, 
not  entitled  to  any  notice  to  quit. 

It  very  frequently  happens  that  the  mortgage  deed  contains  an  Express 
express  covenant  that  the  mortgagor  shall  remain  in  possession  covenant  in 
until  default  in  payment  of  the  mortgage  money  at  a  time  certain,  mor|gaSe 
and,  therefore,  this  covenant  operating  as  a  re-demise,  until  that 
time  arrives  the  possession  of  his  estate  is  secured  to  him  ;  he  be- 
comes, in  fact,  a  termor  (t).     But,  if  he  fail  to  redeem  his  pledge 
by  the  appointed  day,  he  then  becomes  a  tenant  at  sufferance  to 
the  mortgagee      "The  situation  of  a  lessee  on  the  expiration  of 
a  term,  and  a  mortgagor  who  has  covenanted  that  the  mortgagee 
may  enter  on  acertain  day,  is  precisely  the  same  "  (k).     It  must, 
however,  be  carefully  noted  that  (in  spite  of  a  somewhat  conflict- 
ing decision  (?)  of  doubtful  authority),  except  where  there  is  an 

(h)    Thunder   d.    Weaver   v.  (k)  Per  Best,  C.  J.,  5  Bing.  p. 

Belcher,  3  East,  450.  427. 

(?)  Wilkinsons.  Hall,  3 Bing.  (I)  Doe  d.  Lyster  v.  Goldwin, 

S.  C.  508.  2  Q.  B.  143. 


108  mortgagor's  tenants. 

express  and  positive  covenant  that  the  mortgagor  shall  hold  for  a 
determinate  period,  there  isnore-deniise,  and  the  mortgagor  is  but 
a  tenant  at  sufferance  from  the  time  of  the  execution  of  the  mort- 
gage. Thus,  where  it  was  provided  that,  if  the  mortgagor  should 
pay  the  principal  and  interest  on  the  25th  March  then  next,  the 
mortgagee  should  re-convey,  and  there  was  also  a  covenant  that 
after  default  the  mortgagee  might  enter,  it  was  held  that  the  es- 
tate was  in  the  mortgagee  from  the  time  of  the  execution  of  the 
mortgage  (m). 

There  are,  moreover,  other  special  forms  of  agreement  (n)  giv- 
ing rise  to  the  existence  of  various  relations  between  the  parties, 
and  which  cannot  now  be  discussed  ;  but,  whenever  the  mort- 
gagor occupies  the  premises  as  tenant  at  sufferance  or  tenant  at 
will  to  the  mortgagee,  it  is  clear  that  he  can  have  no  power  of 
letting  in  sub-tenants,  and,  if  any  such  are  so  let  in  by  him,  they 
may  undoubtedly  be  treated  by  the  mortgagee  as  tort  feasors. 
But  this  remaik  must  be  taken  as  subject  to  the  provisions  of  the 
Conveyancing  Act,  1881,  to  which  allusion  will  presently  be  made. 
And  it  was  recently  held  that,  where  a  mortgagor  remaining 
in  possession  let  the  premises  to  a  tenant  who  brought  in  trade 
fixtures,  the  tenant  was  entitled  to  remove  the  fixtures  as  against 
the  mortgagee  as  well  as  against  the  mortgagor.  See  Sanders  v. 
Davis,  L.  J.  54  Q.  B.  576. 
Recognition  Supposing,  however,  the  mortgagee  in  any  way  recognizes  their 
of  tenancy  by  tenancy  (o),  they  become  his  tenants  at  the  rent  they  agreed  with 
mortgagee.  tjie  mortgagor  to  pay  ;  and  whether  such  recognition  has  indeed 
taken  place  is  a  question  of  fact  for  the  consideration  of  a  jury, 
but  it  would  seem  to  be  the  better  opinion  that  they  would  not 
be  warranted  in  inferring  it  from  the  mere  circumstance  of  the 
mortgagee's  knowingly  permitting  the  mortgagor  to  continue  the 
apparent  owner  of  the  premises  as  before  the  mortgage  (p). 
Notice  by  It  was  once  thought  that  a  mortgagee  had  only  to  give  him 

mortgagee       notice  to  make  one  of  these  persons  his  own  tenant.     But  it  is 
not  enough.     now  c]ear  that  there  must  be  some  evidence  of  the  man's  consent; 
and  that  the  tenancy,  which  from  the  time  of  that  consent  be- 
gins, is  a  new  tenancy  and  not  merely  a  continuation  of  the  old 
one  between  himself  and  the  mortgagor  (q). 

As  to  the  tenant  of  a  mortgagor  under  a  lease  made  before  the 
mortgage,  it  may  be  remarked  that,  on  the  execution  of  the  mort- 
gage, he  becomes  tenant  of  the  mortgagee,  to  whom  the  estate 
has  been  conveyed  ;  and,  therefore,  the  mortgagor  could  not  main- 

(m)  Doe  d.  Roylance  i;.  Light-  &  Ad.  478;  Evans  v.   Elliot,   9 

foot,  8  M.  &  W.  553.  A.  &  E.  342. 

(n)  Jolly  v.  Arbuthnot,  4  De         (7)  Brown  v.  Storey,  1  Scott, 

G.  &  J.  224.  N.  C.  91  :  Waddilove  v.  Barnett, 

(o)  Doe  0.  Hales,  7  Bing.  322.  2   Bing.   N.  C.   538  ;  Corbett  v. 

(p)  Doe  v.  Cadwallader,  2  B.  Plowden,  L.  J.  54  Ch.  109. 


mortgagor's  tenants.  109 

tain  ejectment  for  a  forfeiture.  For.  although  it  is  a  rule  oflaw 
that  a  tenant  cannot  dispute  the  title  of  his  landlord,  yet  he  may 
confess  and  avoid  it  by  showing  thai  it  is  determined  (r).  It  was 
formerly  necessary  that  the  tenant  of  the  mortgagor  should  attorn 
to  the  mortgagee  before  the  latter  could  claim  rent  from  hi  in.  hut 
it  is  now  sufficient  that  the  mortgagee  should  give  the  tenant  no- 
tice to  pay  the  rent  to  him  (s). 

It  often  happens  that  the  relation  of  landlord  and  tenant  is  ere-  Attornment 
ated  between  the  mortgagee  and  the  mortgagor  by  means  of  the  clauso  in 
insertion  of  an  attornment  clause  in  the  mortgage  deed.     The  mortgage, 
object  of  this  is,  of  course,  to  give  the  mortgagee  the  benefit  of 
the  power  of  distress  possessed  by  a  landlord,  and  it  is  a  perfectly 
legitimate  device  where  the  arrangement  is  bond  file  and  not  a 
mere  contrivance  for  giving  a  preference  to  the  mortgagee  in  case 
of  the  bankruptcy  or  insolvency  of  the  mortgagor  (i).     In  such 
a  case  the  mortgagee  is  entitled  to  distrain  the  goods  even  of  a 
stranger  («). 

A  considerable  modification  of  the  law  connected  with  the  sub-  ^c^  0f  jqqj 
ject-matter  of  this  note  has  been  effected  by  the  Conveyancing 
and  Law  of  Property  Act,  1881.  It  applies  to  mortgages  made  after 
the  Act  and  where  no  contrary  intention  is  expressed  in  the  mort- 
gage deed.  Subject  to  the  provisions  of  the  Act,  the  mortgagor 
while  in  possession  may,  if  he  reserve  the  best  available  rent, 
grant  certain  leases  to  take  effect  in  possession  not  later'than 
twelve  months  after  date.  For  further  information  the  student 
should  refer  to  the  statute  itself  (x). 

The  Judicature  Act,  1873  (#),  gives  power  to  "  a  mortgagor  en-  Judicature 
titled  for  the  time  being  to  the  possession  or  receipt  of  the  rents  Act,  1873. 
and  profits  of  any  land  as  to  which  no  notice  of  his  intention  to 
take  possession  or  to  enter  into  the  receipt  of  the  rents  and  profits 
thereof  shall  be  given  by  the  mortgagee"  to  sue  for  such  posses- 
sion, to  recover  rent  due  to  him,  or  to  bring  an  action  of  trespass 
in  his  own  name  "unless  the  cause  of  action  arises  upon  a  lease 
or  other  contract  made  by  him  jointly  with  another  person."  It 
has  been  held  that  a  mortgagor  in  receipt  of  rents  and  profits  has 
a  sufficient  interest  to  enable  him  to  maintain  an  action  for  an 
injunction  to  restrain  an  injury  done  to  the  mortgaged  property, 
and  that  without  joining  the  mortgagee  as  a  party  (z). 

(r)r>oed. Marriott r.Edwards,  Ch.  D.  335. 
5  B.  &  Ad.  1065.  (w)  Kearley  v.  Philips,  11  Q. 

(s)  Rawson  v.  Eicke,  7  A&E.  B.  D..  621. 
451;   Cook  v.  Guerra,  41  L.  5.,         (.r)  44  &  45  Vict.  c.  41,  s.  18. 
C.  P.  89.  \y)  S  25,  sub-s.  5. 

(/)    Ex   parte  Voisev,  In  re         (z)  Fairclough  v.  Marshall,  4 

Knight,  21  Ch.  D.  412,  and  In  Ex.  D.  37. 
re  Stockton  Iron  Furnace  Co.  10 

9  COMMON   LAW. 


110  COVENANTS    RUNNING    WITH    THE    LAND. 


Covenants  Running  with  tlie  Land. 


[46.]  SPENCER  v.  CLARK. 

(Sometimes  called  Spencer's  Case.) 
[5  Rep.  Gl  (1583).] 

Spencer  let  a  house  and  grounds  to  Smith  for  twenty- 
one  years,  and  Smith  covenanted  to  build  a  brick  wall 
on  the  lands  let  to  him.  Smith  assigned  the  demised 
premises  to  Jones,  without  having  made  the  least  at- 
tempt at  building  the  brick  wall.  But  Jones  could  not 
live  there  either,  and  he  in  his  turn  passed  on  the  place 
to  Clark.  Meanwhile  nobody  had  built  the  wall,  and 
Spencer  called  on  Clark  to  do  it,  saying  that  as  the  as- 
signee he  was  bound  by  Smith's  covenant. 

It  was  decided,  however,  that  Clark  was  not  bound  to 
build  the  wall,  Smith  not  having  covenanted  for  his  as- 
signs but  only  for  himself  as  to  a  subject-matter  not  in 
existence  at  the  time  of  the  covenant. 

Running  A  covenant  is  said  to  new  with  the  fand  when  either  the  liability 

with  land.       ^()  perform  it,  or  the  right  to  take  advantage  of  it,  passes  to  the 

assignee  of  that  land. 
Running  -A.  covenant  is  said  to  run  with  the  reversion  when  either  the  lia- 

with  rever-      bility  to  perform  it,  or  the  right  to  take  advantage  of  it,  passes 

to  the  assignee  of  that  reversion. 

At  common  law  covenants  ran  with  the  land,  but  not  with  the 

reversion.     32  Hen.  VIII.  c.  34,  however,  corrected  that  anomaly 

(a). 
The  law  on  the  subject  of  covenants  running  with  the  land 

may  be  summed  up  as  follows: — 
n\  (1.)  Suppose  the  lessee  who  makes  the  covenant  omits  all  men- 

Assigns  not     Hon  of  his  assigns,  and  thinks  only  of  himself, 
mentioned.  (rt_)  if  the  covenant  has  to  do  with  something  not  in  existence 

at  the  time  the  lease  is  made,  the  assignee  is  not  bound  (&).    This 

is  precisely  the  case  of  Spencer  v.  Chirk.  The  brick  wall  was  not  in 

(a)  See  also  44  &  45  Vict.  e.  {b)  Doughty  v.  Bowman,  11 
41,  ss.  10  and  11.  Q.  B.  444. 


COVENANTS    RUNNING    WITH   THE    LAND.  1  1  1 

existence  at  the  time  the  lease  was  made,  and  indeed  history  does 
not  record  that  it  had  any  subsequent  existence. 

In  Minshull  v.  Oakes  (e),  however,  the  court  expressed  their  Minshull  o 
opinion  that  it  was  not  consistent  with  reason  that  the  naming  of  '  lakes,  had 
the  assigns  in  a  covenant. should  vary  the  liability.  hiw. 

(b.)  "When  the  covenant  extends  to  a  thing  in  esse,  parcel  of 
the  demise,  the  thing  to  he  done  by  force  of  the  covenant  is  in  a 
manner  annexed  and  appurtenant  to  the  thing  demised,  and  shall 
run  with  the  land,  and  shall  bind  the  assignee,  although  In;  be 
not  bound  by  express  words  "  (d). 

"The  following  covenants  seem  to  run  with  the  land,  so  as  to  part icular 
bind  the  assignee,  whether  of  the  reversion  or  the  term,  although  covenants 
not  named: — A  covenant  to  pay  rent  or  taxes,  or  to  repair,  or  to  held  to  run 
leave  in  repair;  to  maintain  a  sea  wall  in  esse  (e);  to  repair,  re-  Wlt"  land- 
new,  and  replace  tenants'  fixtures  and  machinery  fixed  to  the 
premises  (/);  not  to  plough;  to  use  the  land  in  a  husbandlike 
manner;  to  lay  dung  on  the  demised  land  annually;  to  reside  on 
the  demised  premises  during  the  term  ;  to  permit  the  lessor  to 
have  access  to  two  rooms  excepted  from  the  demise  ;  to  carry  all 
the  corn  produced  on  the  demised  land  to  the  lessor's  mill  to  be 
ground  (g) ;  to  leave  the  land  as  well  stocked  with  game  at  the 
end  of  the  term  as  it  was  found  to  be  at  the  beginning  of  it  (/*); 
to  supply  demised  houses  with  good  water  ;  to  repair,  and  pay 
ground  rent;  for  quiet  enjoyment;  to  produce  title-deeds;  to  make 
further  assurance;  to  renew  the  lease;  to  endeavour  to  procure  a 
renewal  of  the  lease  for  another  life  (in  an  underlease  by  lessee 
for  lives);  and  to  build  a  new  smelting  mill  in  lieu  of  an  old  one 
in  a  lease  of  mines  (i).  There  is  also  authority  that  the  covenant 
to  insure  (/«•),  the  covenant  not  to  assign  or  sub-let  without  li- 
cence (I),  and  the  covenant  not  to  carry  on  a  particular  trade  (m), 
run  with  the  land  "  (n). 

Moreover  all  implied  covenants  run  with  the  land. 

(2).  Suppose,  however,  that  the  lessee  covenants  for  his  assigns  (o.) 
as  well  as  for  himself.  Assigns  med- 

(a.)  The  assignee  is,  of  course,  liable  in  case  (Z».)  of  (1).  tioned. 

(b.)  But  he  is  also  bound  in  case  (a.)  of  (1),  provided  that  what 
is  to  be  done  is  to  be  done  o\i  the  demised  premises  (o). 

Clark,  for  instance,  would  have  had  to  build  the  wall  if  Smith 
had  covenanted  for  his  assigns. 

(e)  2  H.  &  N.  793.  (i)  Sampson  v.  Easterby,  9  B. 

(d)  Per  cur.  in  Bally  v.  Wells,     &  C.  505. 

3  Wils.  95.  (k)  Vernon  v.  Smith,  5  B.   & 

(e)  Morland  v.  Cook,  L.  E.  6     A  1. 

Eq.  212.  (/)  Williams  v.  Earle,  sup. 

(/)  Williams  v.  Earle,  L.  R.  (m)  Congleton  v.  Pattison,  10 

1  Q.  B.  739.  East,  1 30. 

(</)  Vyvyani'.  Arthur,  1  B.  &  (n)  Woodf.    Landl.   and  Ten 

C.  410.  (12th  ed.)  149. 

(/<)  Hooper  v.  Clark,  L.  E.  3  (o)  Bally  v.  Wells,  sup. 
Q.  B.  200. 


112 


COVENANTS    RUNNING    WITH    TIIE    LAND. 


Personal 
covenants. 


Assignee  in- 
demnifies 
lessee. 


Other  coven- 
ants respect- 
ing land. 


With  land- 
owner. 


(c. )  The  assignee,  though  expressly  named,  is  not  bound  hy  a 
covenant  which  is  merely  personal  or  collateral  to  the  demised 
premises. 

"The  following  covenants  seems  to  be  personal  covenants,  so 
as  not  to  bind  the  assignee.  A  covenant  by  a  lessor  to  pay  on  a 
valuation  for  all  trees  planted,  or  all  improvements  made,  by  the 
lessee  during  the  term;  to  give  the  lessee  the  option  of  pre-emp- 
tion of  apiece  of  ground  adjoining  the  demised  premises;  a  cove- 
nant by  lessee  to  pay,  in  addition  to  rent  reserved,  ten  per  cent, 
on  the  outlay  which  the  lessor  should  make  in  improving  the 
buildings;  not  to  keep  a  beer-shop  within  a  certain  distance  of 
the  demised  premises  (p);  a  covenant  to  pay  rent  and  repair, 
made  with  a  mortgagor  and  his  assigns,  in  a  lease  granted  by 
himself  together  with  the  mortgagee;  a  covenant  in  an  underlease 
whereby  the  lessor  covenanted  to  observe,  and  indemnify  the 
lessee  against,  the  covenants  in  the  superior  lease,  one  of  which 
"was  to  build  several  houses  on  the  land  (q);  and  a  covenant  by 
lessee  for  himself,  his  executors,  and  assigns,  not  to  have  persons 
to  work  in  a  mill  to  be  erected  on  the  demised  premises  who 
were  settled  in  other  parishes  without  a  parish  certificate.  Where 
the  lessee  of  a  theatre  agreed  to  repay  money  lent  to  him  by  the 
plaintiff  on  a  day  certain,  and  that  until  payment  the  plaintiff 
and  such  persons  as  he  might  appoint  should  have  the  free  use  of 
two  boxes  (not  specified),  and  atterwards  assigned  his  interest, 
it  was  held  that  this  was  a  mere  personal  contract,  and  that  no 
action  could  be  maintained  against  the  assignee  for  refusing  to 
permit  the  plaintiff  to  use  the  boxes"  (>•). 

There  is  an  obligation  implied  by  law  on  the  assignee  of  a  lease 
to  indemnify  the  original  lessee  against  breaches  of  covenants  run- 
ning with  the  land  committed  duringhis  own  tenancy,  the  lessee 
being  in  the  position  of  surety  to  the  lessor  for  the  assignee  (s). 

It  is  to  be  observed  that  there  may  be  covenants  respecting 
land  between  persons  who  do  not  stand  to  one  another  in  the  re- 
lation of  landlord  and  tenant,  and  some  of  such  covenants  run 
with  the  land.  It  will  be  convenient  to  divide  these  covenants 
into  two  classes: — 

(1.)  Covenants  made  by  a  person  with  the  owner  of  land  to  do 
something  in  respect  of  that  land. 

The  benefit  of  such  a  covenant  (e. g.,  for  title)  runs  with  the 
land  so  that  each  successive  transferee  who  is  in  of  the  same  es- 
tate as  the  original  covenantee  was  may  enforce  it  {I).  It  would 
appear  that  the  covenantor  may  be  a  mere  stranger. 


(p)  Thomas  v.  Hay  ward,  L. 
E.  4  Ex.  311. 

(q)  Doughty  v.  Bowman,  sup., 
but  see  Martyn  v.  Clue,  18  Q. 
B.  661. 

(r)  Flight  v.  Glossopp,  2  Bing. 
N.  C.  125;  Woodf.  p.  151. 


(s)  Moule  v.  Garrett,  L.  R.  7 
Ex.  101,  and  "Wolveridge  v. 
Steward,  1  Or.  &  M.  644. 

(t)  Kingdon  v.  Xottle,  4  M. 
&  S.  53,  and  see  Sharp  v.  Water- 
house,  7  E.  &  B.  816. 


COVENANTS    RUNNING    WITH    THE    LAND.  113 

(2.)  Covenants  made  hy  the  owner  of  land  to  do  something  in  p>y  ]an,]_ 
respect  of  that  land.  .owner. 

Such  covenants   (except,  perhaps,  -where  the  covenantee  has  t)o  U(tt  „en_ 
some  interest  in  the  land  independently  of  the  covenant)  do  not  erally  run 
run  with  the  land.     If  they  did,  a  purchaser  might  find  himself  with  land. 
saddled  with  obligations  of  which  he  was  ignorant,  and  which 
would  have  deterred  him  from  buying,  had  he  known  of  them  ; 
and  the  law  looks  with  disfavour  on  impediments  to  the  free  cir- 
culation of  property  («).     If,  however,  a  person  takes   premises  P,ut  pnrchas- 
with  full  knowledge  of  the  existence  of  such  a  covenant,  he  may  ers  ^v it  li  no- 
be  bound  by  it  (x)  ;  and,  indeed,  it  is  his  duty  to  enquire  into  }ue  n?a^ 
the  title  of  his  vendor  or  lessor  (y).     Thus,  in  the  recent  case 
of  Patnian  v.   Harland  (z),  it   appeared  that  in  1876  a  convey-  patman  v. 
ance  in  fee  of  building-land  at  Wimbledon  had  been  made  to  Harland. 
a  purchaser  subject  to  a  covenant  against  erecting  on  the  land 
anything  except  a  private  house.  The  land  was  afterwards  leased, 
and  the  lessee  put  up  a  corrugated  iron  building  as  an  art  studio 
for  ladies.     In  an  action  by  the  original  vendor  against  the  lessee 
it  was  held  that  any  representations  by  the  lessor  to  the  lessee 
that  there  was  no  restrictive  covenant  did  not  protect  the  lessee 
from  being  affected  with  constructive  notice  of  the  lessor's  title, 
and  that  a  purchaser  who  has  notice  of  a  deed  necessarily  affect- 
ing the  vendor's  title  has  notice  of  the  contents  of  the  deed. 
It  was  also  held  that  the  doctrine  that  a  lessee  has  constructive 
notice  of  his  lessor's  title  is  not  altered  by  the  Vendor  and  Pur- 
chaser Act,  1874  (a),  but  a  lessee  who  is  within  that  Act  is  in  the 
same  position  as  if  he  had  contracted  not  to  look  into  his  lessor's 
title. 

The  very  recent  case  of  Haywood  ».  The  Brunswick  Permanent  Doctrines  not 
Benefit  Building  Society  (b),  however,  shows  that  these  doctrines  *°  '"'  extend- 
are  not  to  be  pushed  too  far.  A  plot  of  ground  was  conveyed  sub- 
ject to  a  rent-charge,  the  grantee  for  himself,  his  heirs,  execu- 
tors, and  assigns,  covenanting  with  the  grantor,  his  heirs,  and 
assigns,  that  he,  the  grantee,  his  heirs  or  assigns,  "will  erect 
within  two  years  from  the  date  of  these  presents,  and  all  times 
thereafter  keep  in  good  and  tenantable  repair  and  condition,  and 
from  time  to  time,  when  necessary,  will  rebuild  upon  the  said 
plot  of  land  such  good  and  substantial  messuages  or  other  build- 
ings as  shall  be  of  the  annual  letting  value  of  at  least  double  the 
amount  of  rent^charge  limited  in  respect  of  such  plot."  In  an 
action  by  the  assignee  of  the  grantor  against  mortgages  in  pos- 

(u)  Keppler.  Bailey,  2  Mv.  &  Nottingham  Patent  Brick  and 

K.  517.  Tile  Co.  v.   Butler.  15  Q.   B.  D. 

(x)  Tulk  v.  Moxhay  (the  Lei-  201 ;  Groves  v.  Loonies",  55  L.  J., 

cester  Square  case),  2  Ph.  774,  Ch.  52  ;  and  Brown  v.  Iuskip,  1 

and  Luker  v.  Dennis,  7  Ch.  Div.  C.  &  E.  231. 

227.  (z)  44  L.  T.,  N.  S.  728. 

(y)  Wilson  v.  Hart,  L.  R.  1  C.  (a)  37  &  38  Vict,  c.  78,  s.  2. 

H.  463,  and  see  Thomewell  v.  (b)  45  L.  T.,  N.  S.  699. 
Johnson,  44  L.  T.,  N.  S.  768  ; 


114  COVENANTS    RUNNING   WITH   THE    LAND. 

session  to  an  assignee  of  the  grantee  for  breach  of  this  covenant, 
it  was  held  that  the  covenant  did  not  run  with  the  land  so  as  1<» 
make  the  defendants  Liable  at  common  law,  and  that  it  was  not 
a  covenant  which  could  be  enforced  in  equity  against  assignees 
with  notice.  "It  strikes  me,"  said  Lindley,  L.J.,  "that  this  is 
an  attempt  to  extend  the  doctrine  of  Tulk  v.  Moxhay  too  far." 
S<e  also  Austerberry  v.  Corporation  of  Oldham,  29  Ch.  D.,  750. 
Restrictive  -^s  ^°  now  ^ar  a  restrictive  covenant  justifies  a  vendee  in  claim- 

covenants,  ing  a  declaration  that  the  vendor  has  not  shown  a  good  title,  the 
recent  case  of  In  re  Higgins  and  Hitchman's  contract  (c)  may  he 
consulted.  There,  on  the  sale  of  a  villa  at  St.  Leonard's,  the 
vendor  agreeing  to  deduce  a  good  title,  it  appeared  that  the  ven- 
dor's predecessor  in  title  had  covenanted  not  to  use  the  premises 
as  gasworks  or  a  public-house.  It  was  held  that  this  covenant 
constituted  a  fatal  objection  to  the  title,  although  the  respecta- 
bility of  the  neighborhood  made  it  extremely  unlikely  that  any- 
body would  ever  want  to  convert  the  villa  into  gasworks  or  a 
public-house. 


Implied  Warranty  on  Letting  Furnished  House. 

[47.]  SMITH   v.  MARRABLE. 

[11  M.  &  W.  5  (1843).] 

"  5,  Brunswick  Place,  Sept.  19, 1842. 

"Lady  Marrable  informs  Mrs.  Smith  that  it  is  her  de- 
termination to  leave  the  house  in  Brunswick  Place  as 
soon  as  she  can  take  another,  paying  a  iveek's  rent,  as 
all  the  bedrooms  occupied  bid  one  are  so  infested  with 
bugs  that  it  is  impossible  to  remain" 

And  in  pursuance  of  this  determination  the  Marra- 
bles  moved  out,  and  Smith  went  to  law  with  them,  al- 
leging that  as  they  had  taken  the  house  for  five  weeks 
they  had  no  business  to  leave  in  this  summary  fashion, 
bugs  or  no  bugs.  The  Marrables,  on  the  other  hand, 
successfully  contended  that  it  is  an  implied  condition 
in  the  letting  of  a  furnished  house  that  it  shall  be  rea- 
sonably fit  for  lutbitation,  and  that,  if  it  is  not  fit,  the 
tenant  may  quit  without  notice. 

(c)  51  L.  J.  Ch.  772,  and  see  L.  T..  N.  S.  413,  and  Sayers  v. 
L.  C.  &  D.   Ky.  Co.  v.  Bull,  47     Collyer,  28  Ch.  D.  103. 


WARRANTY    ON    LETTING    FURNISHED    HOUSES.  115 

The  famous  bug  case,  after  having  been  disrespect  fully  spoken 
of  for  many  years,  was  in  1877  expressly  affirmed  by  the  case  of 
Wilson  v.  Finch  Ilatton  (d),  where  its  principle  was- applied  to 
defective  drainage. 

It  is  to  be  observed  that  it  is  only  in  the  ease  of  furnished  Exception  to 
houses  that  reasonable  fitness  is  an  implied  condition.  In  general,  rule. 
in  the  absence  of  deceit,  there  is  no  such  implied  condition  by 
the  lessor  of  land  or  houses  (e),  nor  that  he  will  do  any  re- 
pairs (/),  nor  even  that  the  house  will  endure  during  the  term. 
See,  however,  the  12th  section  of  the  Housing  of  the  Working 
Classes  Act,  1885  (48  &  49  Vict.  c.  72),  with  regard  to  houses  let 
for  habitation  by  persons  of  the  working  classes  at  a  low  rent. 
In  the  recent  case  of  Manchester  Bonded  Warehouse  Co.  v.  Attempts  to 
Can-  {g),  where  a  building  had  fallen  in  consequence  of  a  floor  increase  lia- 
being  overloaded  with  flour,  and  rent  was  claimed  by  the  lessors  '  ji^.'i 
during  the  time  the  building  was  unoccupied,  the  court  said  dis- 
tinctly, "We  are  not  prepared  to  extend  these  decisions  [viz., 
Smith  v.  Marrdble  and  WTilson  v.  Finch  Hatton]  to  ordinary  leases 
of  lands,  houses,  or  warehouses,  as  we  must  if  we  are  to  hold 
the  plaintiffs  liable  for  the  fall  of  this  warehouse  by  reason  of 
any  implied  covenant  or  warranty. ' '  Another  courageous  attempt 
to  extend  the  liabilities  of  landlords  was  made  in  Anderson  v. 
Oppenheimer  (/*),  where  the  tenant  of  the  ground  floor  and  base- 
ment of  a  bouse  in  Cannon  Street,  let  out  in  flats  to  different  ten- 
ants, tried  unsuccessfully  to  get  damages  under  a  covenant  for 
quiet  enjoyment  for  the  bursting  of  a  water  pipe  and  consequent 
injury  to  his  goods.  In  Powell  v.  Chester  (?)  the  grievance  was 
that  there  was  an  insufficient  water  supply,  but  Bacon,  V.C.,  de- 
clined to  apply  the  principle  of  Smith  v.  Marrable  to  the  facts  of 
the  case.  Indeed  his  judgment  shows  a  disposition  to  limit  the 
application  of  the  principle  as  much  as  possible. 

It  may  be  mentioned  that  when  the  lessor  has  covenanted  to  Covenant  by 
keep  the  demised  premises  in  repair  during  the  term,  he  is  en-  landlord  to* 
titled   to   notice  of  want  of  repair  (k).     It   has  been  held  that  repair, 
under  a  covenant  to  keep  the  demised  premises  in  repair  the 
lessor  is  not  bound  to  cleanse  an  ornamental  piece  of  water  in  the 
grounds  (Z).     And  even  when  the  landlord  is  bound  to  do  the 
repairs,  there  is  no  implied  condition  that  the  tenant  may  quit  if 
the  repairs  are  not  done  (m),  nor  may  he  do  them  himself,  and 
deduct  the  amount  from  his  rent  (»). 


(d)  2  Ex.  Div.  336.  (k)  Makin  r.  Watkinson.   L. 

{e)  Keates  v.  Cadogau,  10  C.     R.  6  Ex.  25. 

D.  591.  (0  Bird  v.  Elwes,  L.  R.  3  Ex. 

(/)  Gott  v.  Candy,  2  E.  &  B.     225. 

847.  (m)  Surplice  v.  Farnsworth,  7 

(q)  5  C.  P.  D.  507.  M.  &  G.  576. 

(h)  49  L.  J.  Q.  B.  708.  (n)  Weigall  v.  Waters,    6  T. 

(i)  52  L.  T.,  N.  S.  722.  R.  488. 


116 


JOINT    TENANCY. 


Joint  Tenancy. 


[48.]  MORLEY  v.  BIRD. 

[2  Ves.  629  (1798).] 

William  Collins  by  his  will  gave  all  his  property  to 
his  daughter  Elizabeth,  on  condition  that  she  paid  to 
the  four  daughters  of  his  brother  John  "four  hundred 
pounds  out  of  seven  noiv  lying  in  the  £3  per  cent,  con- 
solidated.'''' 

Three  of  John's  daughter's  having  died  during  the 
testator's  lifetime,  it  was  held  that  Martha,  the  fourth 
daughter,  who  survived  him,  was  entitled  to  the  whole 
legacy  given  to  the  four  daughters. 

"Great  doubts,"  said  Sir  R.  P.  Arden,  M.R.,  "have 
been  entertained  by  judges,  both  at  law  and  in  equity, 
as  to  words  creating  a  joint  tenancy  or  a  tenancy  in 
common;  and  it  is  clear  the  ancient  law  was  in  favour 
of  a  joint  tenancy.  And  that  law  still  prevails:  unless 
there  are  some  words  to  sever  the  interest  taken,  it  is  at 
this  moment  a  joint  tenancy,  notwithstanding  the  lean- 
ing of  the  courts  lately  in  favour  of  a  tenancy  in  com- 
mon. .  .  .  ' .  This  is  a  legacy  to  four  persons,  and 
there  are  no  words  of  severance;  therefore  it  is  a  joint 
legacy,  and  the  whole  interest  survives  to  the  survivor, 
three  being  dead." 


Characteris- 
tics of  joint 
tenancy. 


An  estate  in  joint  tenancy  is  one  acquired  by  two  or  more  per- 
sons in  the  same  land,  by  the  same  title  (not  being  a  title  by  de- 
scent), at  the  same  period,  and  without  words  importing  thai  they  are 
to  take  in  distinct  shares.  Joint  tenants  are  not  considered  as  hold- 
ing in  distinct  shares,  like  tenants  in  common,  but  each  is  equally 
Ri"ht  of  sur-  cnt'^e'l  fo  ^e  whole ;  and  it  is  from  this  entirety  of  interest  that 
vivorship.  the  most  remarkable  incident  of  joint  tenancy,  the  right  of  sur- 
vivorship, arises, 

But,  although  there  may  be  no  words  of  severance,  special  cir- 
cumstances may  sometimes  justify  the  courts  in  construing  what 
seems  to  be  a  joint  tenancy  to  be  really  a  tenancy  in  common  ; 


JOINT   TENANCY.  117 

e.g.,  the  purchase  money  being  advanced  in  unequal  proportions  Tenancy  in 
(o),  or  the  purchase  being  made  for  a  joint  undertaking  {p),  or,  common. 
again,  in  the  case  of  marriage  articles  (q).  though  no 

So  far  as  the  law  of  contracts  is  concerned,  the  most  important  severance 
aspect  in  which  joint  tenants  and  tenants  in  common  can  be  re-  Leases  by 
garded  is  as  landlords,  and  on  that  branch  of  the  subject  the  fol-  joint    tenants 

lowing  remarks  from  a  work  of  great  authority  in  the  profession  and  tenants 

i  i    i  in  common, 

may  be  quoted:— 

"Joint  tenants  and  tenants  in  common  may,  according  to  the 
interest  they  have,  join  or  sever  in  making  leases;  and  such  leases 
bind  whether  made  to  commence  iwprsesenti  ovinfuturo.  If  joint 
tenants  join  in  a  lease,  there  is  but  one  lease,  and  they  all  make 
but  one  lessor,  for  they  have  but  one  freehold;  but  if  tenants  in 
common  join  in  a  lease,  there  are  several  leases  of  their  several  in- 
terests; for  although  tenants  in  common  cannot  make  a  joint  lease 
of  the  whole  of  their  estate,  yet  if  they  join  in  a  lease  for  years 
by  indenture  of  their  several  lands,  it  is  the  lease  of  each  for 
their  respective  parts,  and  the  cross  confirmation  of  each  for  the 
part  of  the  other,  and  no  estoppel  on  either  part,  because  an  act- 
ual interest  passes  from  each  respectively.  There  is  no  doubt 
that  a  demise  by  tenants  in  common,  though  joint  in  its  terms, 
operates  as  a  separate  demise  by  each  tenant  in  common  of  his 
undivided  share,  and  a  confirmation  by  each  of  his  companions 
(c).  Where  joint  tenants  concur  in  granting  a  lease,  the  interest 
of  the  lease  continues,  notwithstanding  the  decease  of  either  of 
the  lessors,  and  the  survivor  is  entitled  to  the  whole  rent  (s). 
So,  if  the  lease  be  at  will,  the  death  of  one  of  the  lessors  does 
not  operate  as  a  countermand  of  the  tenancy  even  for  a  moiety; 
all  survives  to  the  other,  and  if  the  lessee  continue  his  posses- 
sion, the  survivor  may  maintain  an  action  for  the  whole  rent. 
But  though  each  joint  tenant  is  considered  entitled  to  the  whole 
while  the  joint  tenancy  continues,  and  is  said  to  be  seised  '  per 
my  et  per  tout,'  yet  for  the  purposes  of  alienation,  each  has  an 
exclusive  right  to,  and  dominion  over,  his  own  share  or  propor- 
tion ;  and  therefore  if  one  of  two  joint  tenants  make  a  lease 
of  the  whole,  his  moiety  only  will  pass  (/).  So,  a  lease  purport- 
ing to  be  made  by  both,  and  executed  by  one  only,  is  a  good  lease 
for  the  moiety  of  him  only  who  has  executed. 

"If  one  joint  tenant  make  a  lease  of  his  moiety  for  years,  and 
die  before  the  lessee's  entry,  the  lease  will  bind  the  survivor,  and 
the  lessee  will  retain  his  interest  in  the  moiety  demised  until  his 

(o)  Lake  r.  Craddock,  1  Lead.  (>•)  Thompson  v.  Hakewill,  19 

Cas.  Eq.  205.  C.  B.,  N.  S.  713. 

( p)  Jeffereysf.  Small,  1  Vern.  (s)  Doe  v.  Summersett,  1  B.  & 

217.  Ad.  135. 

(q)    Liddard   v.    Liddard,  28  (t)  Bellingham  v.  Alsop,  Cro. 

Beav.  266.  Jac.  52. 


118 


Lease  to 
each  other. 
Joint  ten- 
ancy, how 
dissolved. 


JOINT    TENANCY. 

term  expire.  And  so  one  joint  tenant  may  make  a  lea~e  to  com- 
mence after  his  death,  and  his  co-tenant,  if  he  survive,  will  be 
bound  by  it  (u). 

"One  joint  tenant  or  tenant  in  common  may  make  a  lease  for 
years  of  his  part  to  his  companion"  {x). 

A  joint  tenancy  may  be  dissolved  by  partition,  by  alienation 
without  partition,  or  by  accession  of  interest.  A  joint  tenant,  how- 
ever, can imt  leave  his  share  by  will,  because  a  will  is  of  no  force  till 
the  testator  is  dead,  and  then  the  right  of  survivorship,  which  ac- 
crued at  the  original  creation  of  the  estate,  has  a  prior  claim  to 
be  considered  (y).  If  one  of  three  joint  tenants  exercises  his 
power  of  disposition  in  favour  of  a  stranger,  that  person  will  then 
hold  one  undivided  third  part  of  the  land  as  tenant  in  common 
with  the  remaining  two  (2). 


[49.] 


Licences. 

WOOD  v.  LEADBITTER. 
[13  M.  &  W.  838  (1845).]     " 

Mr.  Wood  usually  made  a  point  of  seeing  the  Leger. 
But,  while  he  was  in  the  Grand  Stand  enclosure  at  the 
Doncaster  races  in  1843,  with  a  four  days'  ticket,  for 
which  he  had  paid  a  guinea,  in  his  pocket,  an  official 
came  up  to  him,  and,  "  in  consequence  of  some  alleged 
malpractices  of  his  on  a  former  occasion  connected  with 
the  turf,"  requested  him  to  leave,  adding  that,  if  he  did 
not,  it  would  be  his  duty  to  turn  him  out.  Mr.  "Wood 
declined  to  go,  and  so  Leadbitter,  by  order  of  Lord 
Eglintoun,  the  steward  of  the  races,  took  him  by  the 
shoulders  and  dragged  him  out. 

For  this  assault,  as  he  called  i  t,  Mr.  "Wood  now  brought 
an  action,  maintaining  that  he  was  on  the  Grand  Stand 
by  the  licence  of  Lord  Eglintoun,  inasmuch  as  that  no- 


(«)  Clerk  t>.'Clerk,2Vern.323. 

(x)  Cowper  v.  Fletcher,  (i  B.  & 
S.  464;  Woodf.  Landl.  and  Ten. 
(12th  ed.)  p.  9 


(y)  Smith  v.  Roberts,  3  Burr. 
1  188. 

(z)  Wins.  R.  P.  (13th  ed.)  p. 
138. 


LICENCES.  119 

blenian  had  sold  him  a  ticket,  and  that  such  licence  was 
irrevocable.  It  was  held,  however,  that  such  a  licence 
was  not  irrevocable,  and  that  Lord  Eglintoun  had  a  por- 
fect  right,  without  returning  the  guinea,  and  without 
assigning  any  reason,  to  order  the  plaintiff  to  quit  the 
enclosure,  and,  if  necessary,  to  have  him  forcibly  re- 
moved. 

The  leading  case  goes  no  further  than  to  establish  that  a  mere  T^ccnce  con- 
licence  (even  though  under  seal)  is  revocable  ;  the  reason   heing  fers  no  inter- 
that  such  a  licence  confers  no  interest  in  land,  but  only  renders  ''s^  >n  land. 
lawful  what  would  without  it  be  a  trespass.     Such  a  licence  may  be  licence  now 
revoked,  not  merely  by  express  words,  but  by  any  act  of  the  li-  revoked, 
censor  which  shows  his  unwillingness  or  inability  to  continue  it. 
Locking  a  gate,  for  instance,  or  selling  a  field,  would  operate  as  a 
revocation.     Of  course,  if  the  agreement  was  regular,  an  action 
for  damages  lies  on  the  licence  being  revoked. 

But  if  the  licence  is  more  than  a  mere  licence,  if  it  comprises  Licence 
or  is  connected  with  a  grant,  then  the  person  who  has  given  it  when  irre- 
caunot  revoke  it  so  as  to  derogate  from  his  own  grant.     Thus,  if  vocable. 
a  person  sells  goods  on  his  own  land,  and  gives  the  vendee  a  li- 
cence to  come  and  take  them,  he  cannot  revoke  the  licence  ;  and 
the  vendee  would  be  justified  in  breaking  down  the  gates  and 
entering  to  take  the  goods  (a).     But  a  licence  connected  with  an 
invalid  grant  is  revocable  (b).     In  the  case  of  Winter  v.  Brock- 
well  (c)  it  was  held  that  a  parol  licence  given  to  a  neighbour  to 
erect  a  sky-light  on  the  neighbour's  own  land  could  not  be  revoked 
after  it  had  been  executed  at  the  neighbour's  expense.     But  a 
parol  licence  to  make  a  drain  on  the  licensor's  land  may  be  with- 
drawn at  pleasure,  though  the  licensee  may  have  spent  quite  a 
fortune  over  it  (d). 

Difficulties  sometimes  arise  in  practice  as  to  whether  an  instru-  Tenant,  or 
ment  creates  a  tenant  or  merely  a  licensee.'  The  test  appears  to  licencee? 
be  whether  it  was  the  intention  of  the  parties  that  the  person  let 
into  possession  should  have  the  exclusive  possession  or  not.  If  it 
is  clear  that  that  was  not  the  intention  of  the  parties,  the  instru- 
ment is  not  a  demise  or  lease,  although  it  contains  the  usual 
words  of  demise  (e). 

Though  a  licensee  has  no  title  as  against  his  licensor,  it  is  not  >i;lv  licensee 
so  clear  that  he  may  not  sue  a  third  person  who  interrupts  him  sue  third 
in  the  enjoyment  of  his  licence.     In  Xuttall  r.  Bracewell  (/),  a  l>:utv  • 
mill-owner  who  had  for  some  time  enjoyed  the  benefit  of  the  flow 


(a)  Wood  v.  Manley,  11  A.  &  (d)  ITewlius  v.  Shippam,  5  B. 
E.  34.  &C.  221. 

(b)  Roffey  v.  Henderson,  17  Q.  (e)  Hancock  v.  Austin.  14  C. 
B.  574.  B..  X.  S.  6:?4. 

(c)  8  East,  308.  (/)  L.  K.  2  Ex.  1. 


120  LICENCES. 

Nuttall  V.  of  water  through  a  goit  from  a  natural  stream,  was  held  entitled 
Bracewcll.  to  recover  damages  against  a  riparian  owner  for  intercepting  the 
water  of  the  stream:  and  Bramwell,  B.,  put  his  right  to  succeed 
on  the  plain  ground  thai  a  riparian  land-owner  can  grant  to  anon- 
riparian  land-owner  the  flow  of  water  from  the  stream  to  his  premises 
for  the  use  of  the  premises,  and  the  grantee  mag  tue  for  a  disturbance 
of  his  enjoyment  by  a  higher  riparian  owner.  Some  of  the  judges, 
however,  were  inclined  to  consider  that  the  plaintiff  was  a  riparian 
proprietor  in  respect  of  the  goit,  and  on  that  ground  decided  in 
his  favour.  Speaking  of  the  previous  case  of  Hill  r.  Tupper  (g) 
(where  the  Basingstoke  Canal  Company  had  given  the  plaintiff 
the  exclusive  right  of  putting  pleasure  hoats  on  the  qanal,  and 
yet  it  was  held  that  their  having  done  so  gave  them  no  right  of 
action  against  a  puhlican  who  also  began  putting  boats  on  the 
canal),  Bramwell,  B.,  said,  "But  it  may  be  said.  How  is  Hill  v. 
Tupper  distinguishable?  One  mode  of  enjoying  land  covered 
with  water  is  to  row  boats  on  it,  and  the  owner  has  an  exclusive 
right.  I  think  it  easy  to  point  out  the  distinction.  It  was  com- 
petent for  the  grantors  in  that  case  to  grant  to  the  plaintiff  a 
right  of  rowing  boats  on  the  canal  ;  and  had  anyone  interfered 
with  that  right,  the  grantee  might  have  maintained  an  action 
against  him.  But  the  plaintiff  there  did  not  sue  for  any  such 
cause  of  action.  He  sued,  not  because  his  rowing  was  interfered 
with,  but  because  the  defendant  used  a  boat  on  the  icaler. 

Perhaps,. however,  the  more  satisfactory  ground  on  which  to 
rest  the  decision  in  Hill  v.  Tupper  is  that  the  right  claimed  was 
of  a  novel  character,  and  one  not  capable  of  existence  in  law,  so 
that  it  could  operate  onlj'  as  a  licence  between  grantor  and  grantee, 
and  could  confer  no  property  as  against  third  persons. 


Contracts  Contrary  to  Public  Policy. 


[50.] 


EGERTON  r.  BROWNLOW. 
[4  H.  L.  CAS.  1  (1853).] 

The  seventh  Earl  of  Bridgewater  was  anxious  that 
after  his  death  some  member  of  his  family  should  become 
a  duke,  and  with  that  great  object  in  view  ho  sat  down 
and  made  his  will.  He  left  large  estates  to  Lord  Alford 
and  his  heirs,  but  expressly  provided  that,  if  Lord  Al- 
ford died  without  being  made  a  duke,  they  should  go  over. 

(g)  2  H.  &  C.  121. 


CONTRACTS  CONTRARY  TO  PUBLIC  POLICY.  121 

Lord  Alford  was  not  made  a  duke,  but  it  was  held 
nevertheless  that  the  estates  did  not  go  over,  as  the 
condition  subsequent  which  the  earl  had  imposed  was 
contrary,  to  public  policy  and  void. 

"May  I  not  do  what  I  will  with  mine  own?"     Why,  cer-  No  true 
tainly;  but  perhaps  you  will  have  the  kindness  to  tell  us  what  ownership  of 
is  your  own.     No  man,  according  to  our  law,  is  the  owner  of  land.  I;u"'- 
At  the  most  he  is  tenant  in  fee  simple;  the  ownership  residing  all 
the  time  in  the  Crown,  that  is,  ia  the  State.     As  to  personal 
property,  the  law  recognises  a  quasi-ownership.     In  other  words, 
it  protects  a  man  in  the  enjoyment  of  it.     But,  of  course,  an  Act 
of  Parliament  can  take  away  all  those  safeguards  which   are 
thrown  round  the  enjoyment  of  property,  whether  real  or  per- 
sonal; and  when  the  interests  of  the  State  and  the  interests  of 
individuals  happen  to  clash,  public  policy  (that  is,  "the  public 
good  recognised  and  protected  by  the  most  general   maxims  of 
the  law  and  the  constitution")  requires  that  the  former  shall 
prevail . 

Egerton  v.  Brownlow  is  an  important  case  on  this  "public  pol-  Principle  of 
icy."  It  was  considered  that  the  condition  violated  it  because  it  leadingcases. 
would  be  "mischievous  to  the  community  at  large  that  every 
branch  of  the  public  service  should  be  besieged  by  persons  who 
at  the  peril  of  losing  their  estates  were  making  every  effort  to 
obtain  offices  for  which  they  might  be  unfit,  and  to  procure 
titles  and  distinctions  of  which  they  might  be  unworthy,"  and 
because  the  common  law  hates  capricious  conditions. 

It  is  to  be  observed  that,  in  dealing  with  cases  of  this  kind,  Maxims, 
the  courts  are  not  distributing  a  kind  of  equity  differing  with 
the  length  of  each  judge's  foot,  but  are  acting  on  certain  well- 
known  principles  and  maxims,  such  as,  Solus populi  suprema  lex, 
Nihil  quod  est  inconvenicns  est  licitum,  Sic  utcre  tuo  ut  alienum  non 
lacdas,  dre. 

The  student  may  with  advantage  refer  to  two  recent  cases  on  "You  vote  for 
public  policy.     In  one  of  them  (h)  the  plaintiff  and  defendant  my  man,  and 
were  both  subscribers  to  a  certain  charity,  the  objects  of  which  I'll  vote  for 
were  elected  by  the  subscribers  with  votes  proportioned  to  the  yours- 
amount  subscribed.     The  defendant  on  one  occasion  was  anxious 
that  a  particular  person  should  be  elected;  so,  to  compass  his  ob- 
ject,  he  agreed  with  the  plaintiff  that,   if  the  latter  would  give 
twenty-eight  votes  for  the  candidate  at  this  election,  he  (the  defendant) 
would  at  the  next  election  give   twenty-eight  votes  for  anybody  the 
plaintiff  wished.     Accordingly,  the  plaintiff  voted  for  the  defend- 
ant's candidate;  hut,  when  the  next  election  came  round,  the 
defendant   refused   to   furnish  the   twenty-eight  votes   he   had 
promised,  and  the  plaintiff  in  consequence  subscribed  £7  7s.  to 


(A)  Bolton  v.  Madden,  L.  E.  9  Q.  B.  55. 


122  CONTRACTS  CONTRARY  TO  PUBLIC  POLICY. 

the  charily  so  as  to  obtain  twenty-eight  more  votes  in  his  own 
right.  In  an  action  for  the  money  thus  paid,  it  was  urged  by 
the  defendant  that  the  agreement  was  void  as  against  public  pol- 
icy. "The  argument  for  the  defendant,"  said  Blackburn,  J., 
'•  was  that  the  .subscriber  to  a  charity  is  under  an  obligation  to 
give  his  votes  for  the  best  object,  and  that  the  plaintiff,  if  he 
gave  his  votes  at  the  first  election  to  what  he  thought  the  best 
candidate,  incurred  neither  trouble  nor  prejudice,  so  that'there 
was  in  that  point  of  view  no  consideration;  and  if  he  gave  his 
votes  to  the  candidate  whom  he  did  not  think  the  best,  the 
whole  agreement  was  void  as  against  public  policy.  But  though 
some  of  us,  at  least,  much  disapprove  of  this  kind  of  traffic,  we 
can  find  no  legal  principle  to  justify  us  in  holding  that  the  sub- 
scriber to  a  charity  may  not  give  his  votes  as  he  pleases,  answer- 
ing only  to  his  own  conscience  and  reputation  for  the  way  he 
exercises  his  power." 
Keepin"  it  I"  the  other  case  (■/),  the  plaintiff  had  seduced  a  man's  wife, 

secret.  and  had  then  entered  into  an  agreement  with  husband  that,  if 

the  latter  would  keep  the  affair  secret,  the  former  would  not  en- 
force the  payment  of  a  certain  bond.  The  husband  died;  and, 
thinking  perhaps  that  the  secret  had  died  with  him,  the  plaintiff 
sued  on  the  bond.  In  answer  to  the  claim,  the  executor  pleaded 
the  agreement;  but  the  plea  was  held  bad,  on  the  ground  that 
there  was  no  valid  consideration  for  the  plaintiff's  promise. 

Other  subjects  illustrating  public  policy  are  bribery  ;  champerty 
and  maintenance;  sale  of  offices ;  insurance  of  seamen's  wages;  trad- 
ing with  enemies;  and  assignment  of  salaries:  and  the  student  is 
recommended  to  refer  to  the  following,  amongst  other,  cases: — 
Coppock  v.  Bower,  4  M.  &  AY.  3G1 ;  Ball  v.  Warwick,  44  L.  T., 
N.  S.,  218;  Keir  v.  Leeman,  9  Q.  B.  371;  Potts  v.  Bell,  8  T.  R. 
548;  YYebster  v.  De  Tastet,  7  T.  R.  157;  Stanley  v.  Jones,  7  Bing. 
369;  In  re  Parker,  21  Ch.  D.  408;  Bradlaugh  v.  Newdegate,  11 
Q.  B.  D.  1;  Appleby  v.  Franklin,  34  AY.  R.  231. 


[51.] 


Illegal  Contracts. 

COLLINS  pl  BLANTERN. 
[2  AYils.  341  (1767).] 


This  was  an  action  on  a  bond  which  was  intended  to 
secure  to  the  plaintiff  the  repayment  of  a  sum  of  £350. 

(i)  Brown  v.  Brine,  1  Ex.  Div.  5. 


ILLEGAL    CONTRACTS.  123 

But  the  fact  was  that  the  plaintiff  had  advanced  the 
money  for  the  purpose  of  squaring  a  criminal  prosecu- 
tion, and  it  was  therefore  successfully  pleaded  that  the 
consideration  for  the  bond  iras  illegal  and,  although  it 
did  not  appear  on  the  face  of  the  deed,  vitiated  it. 

Said  Lord  Chief  Justice  Wilmot,  in  memorable  words, 
"You  shall  not  stipulate  for  iniquity.  All  writers  upon 
our  law  agree  in  this — no  polluted  hand  shall  touch  the 
pure  fountains  of  justice.  Whoever  is  a  party  to  an 
unlawful  contract,  if  he  has  once  paid  the  money  stip- 
ulated to  be  paid  in  pursuance  thereof,  he  shall  not  have 
the  help  of  a  court  to  fetch  it  back  again;  you  shall  not 
have  a  right  of  action  when  you  come  into  a  court  of 
justice  in  this  unclean  manner  to  recover  it  back.  Pro- 
cul  01  procul  este  profani!" 

A  deed  is  of  so  solemn  a  nature  that  whatever  a  man  therein 
asserts  he  is  estopped  from  afterwards  denying.     On  the  other 
hand,  "the  pure  fountains  of  justice"  must  not  be  polluted;  and 
so  we  get  engrafted  on  our  rule  the  exception  that  illegality  is  fa-  n         .  . 
tal,  not  only  to  an  ordinary  agreement,  but  even  to  a  deed.  ^     illegality 

It  may  happen,  however,  that  the  legal  part  of  an  agreement  geVeral 
can  be  separated  from  the   illegal.     This  can  never  be  the  case  promises, 
where  one  of  several  considerations  is  illegal,  because  it  cannot  be  some  illegal, 
known  which  of  them  induced  the  promise.     But  when  the  con-  some  uot- 
sideration  is  not  illegal,  and  there  are  several  promises,  some  of 
which  are  illegal,  and  others  not,  the  agreement  is  void  only  if 
the  illegal  promises  are  incapable  of  being  separated  from  the 
legal. 

Illegal  contracts  are  generally  divided  into  two  classes: — 

(1.)  Those  illegal  by  the  common  law. 

(2.)  Those  illegal  by  statute. 

Under  the  former  head  come  contracts  in  restraint  of  marriage  Common  law 
or  trade,  contracts  impeding  the  administration  of  justice,  im-  illegality, 
moral  contracts,  and  the  like.     Under  the  latter  head  may  be  Statutory 
mentioned  Sabbath-breaking  and  gaming  contracts.     To  make  a  illegality, 
contract  void,  the  statute  need  not  use  express  words  of  prohibi-  Penalty  im- 
tion;  if  it  inflicts  a  penalty,  it  is  sufficient  (k).     If,  however,  the  plies  prohi- 
object  of  the  statute  is  not  to  prohibit  the  act  done,  but  only  to  im-  n  lou* 
pose  a  penalty  for  the  purpose  of  the  revenue,  the  contract  will  not 
be  illegal  (I). 

(k)  Cope  v.  Rowlands,  2  M.  &     son,  4  C.  B.  376. 
W.  149;  Bensley  v.  Bignold,  5B.         (I)  Smith  v.  Mawhood,  14  M. 
&  Aid.  335;  and  Cundell  v.  Daw-    &  W.  452. 


124 


ILLEGAL    CONTRACTS. 


Agreement  to 

stifle  prose- 
cution. 


Infection. 


Recovering 
money  paid 
for  illegal 
purpose. 


Glaucina 
and  the 
F^psorn 
Stakes. 


Though  an  agreement  to  stifle  a  public  prosecution  is  illegal, 
in  such  cases  the  intention  to  impede  the  administration  of  justice 
must  be  clearly  proved.  In  the  recent  case  of  Flower  v.  Sadler 
(m)  it  was  held  that  in  order  to  render  illegal  the  receipt  of  se- 
curities by  a  creditor  from  his  debtor,  where  the  debt  has  been 
contracted  under  circumstances  which  might  render  the  debtor 
liable  to  criminal  proceedings,  it  is  not  enough  to  know  that  the 
creditor  was  thereby  induced  to  abstain  from  prosecuting. 

A  contract  perfectly  good  and  legal  in  itself  may  become  bad 
and  illegal  by  being  connected  with  a  previous  illegal  contract. 
A  man  once  brought  an  action  on  a  covenant  for  payment  of 
money.  But  the  defendant  set  up  the  defence  that  a  contract  had 
been  formerly  entered  into  between  himself  and  the  plaintiff,  by 
the  terms  of  which  the  plaintiff  was  to  sell  him  some  land  lor 
the  illegal  purpose  of  being  sold  by  lottery;  and  he  said  that  the 
deed  on  which  the  plaintiff  was  now  suing  him  was  a  security 
for  the  purchase-money  of  that  land.  The  judges  considered 
that  this  plea  was  an  answer  to  the  plaintiff's  claim.  "It  is 
clear,"  they  said,  "that  the  covenant  was  given  for  payment  of 
the  purchase-money.  It  springs  from  and  is  a  creature  of  the 
illegal  agrement,  and,  as  the  law  would  not  enforce  the  original 
illegal  contract,  so  neither  will  it  allow  the  parties  to  enforce  a 
security  for  the  purchase-money,  which  by  the  original  bargain 
was  tainted  with  illegality  [n). 

Money  paid  for  an  illegal  purpose  may  be  recovered  back  any 
time  before  the  illegal  purpose  has  been  carried  out  (o);  but  not 
afterwards,  because  then  the  parties  are  in  pari  delicto,  and  the 
maxim  mclior  est  conditio  possidentis  applies.  "  The  true  test,"  it 
was  said  in  a  case  where  a  man  tried  unsuccessfully  to  get  bank- 
note he  had  given  a  brothel-house  keeper  as  a  security  for  a  debt 
for  wines  and  suppers  at  the  brothel  (p),  "fur  determining 
whether  or  not  the  plaintiff  and  the  defendant  were  in  pari  delicto, 
is  by  considering  whether  the  plaintiff  could  make  out  his  case 
otherwise  than  through  the  medium  and  by  the  aid  of  the  illegal 
transaction  to  which  he  was  himself  a  party."  So  in  Simpson  v. 
Bloss  (q)  the  plaintiff  had  bet  25  guineas  with  a  Captain  Brograve 
that  a  mare  named  Glaucina  would  win  the  Epsom  Stakes,  and 
the  defendant  agreed  to  contribute  to  the  extent  of  10  guineas. 
Glaucina  won,  and,  in  the  expectation  of  getting  the  whole*25 
guineas  from  the  Captain,  the  plaintiff  paid  the  defendant  his  ](J 
guineas.     Unfortunately.  Brograve  immediately  afterwards  died; 

O)  10  Q.  B.  D.  572,  following     D.  291 .  and  Wilson  v.  Strugnell, 


Ward  v.  Lloyd,  7  Scott,  N.  R. 
499;  and  see  Rourke  v.  Mealv, 
41  L.  T.,  N.  S.  168. 

(»)  Fisher  v.  Bridges,  3  E.  &  B. 
642;  and  see  Jennings  v.  Ham- 
mond, 9  Q.  B.  D.  225. 

(o)  Taylor  v.  Bowers,  1  Q.  B. 


7  Q.  B.  D,  548.  But  see  Herman 
v.  Jeuchner,  L.  J.,  54  Q.  B.  340. 

(p)  Taylor  v.  Chester,  L.  R.  4 
Q.  B.  309",  and  Herman  v.  Jeuch- 
ner, 15  Q.  B.  D.  561. 

(g)  7  Taunt.  246. 


ILLEGAL    CONTRACTS.  12-J 

and  the  plaintiff  never  received  the  money.  It  -was  held  that  ho 
was  not  entitled  to  recover  the  10  guineas  he  had  prematurely 
paid  away,  because  his  claim  to  do  so  was  too  much  mixed  up 
with  the  illegal  transaction  in  which  he  and  the  defendant  and 
Brograve  had  been  jointly  engaged. 

When  it  is  doubtful  whether  a  contract  is  legal  or  illegal,  the 
presumption  of  law  w  in  fovour  of  its  being  legal  (r). 

Closely  connected  with  the  present  subject  is  the  doctrine  of  Ultra  vires. 
ultra  vires.     That  is  the  name  given  to  those  contracts  which, 
being  beyond  the  purposes  of  its  existence,  a  corporation  has  no 
power  to  make,  and  which  are  therefore  void.     Thus,  it  has  been 
held  ultra  vires  for  a  railway  company  to  work  coal  mines  (s),  to 
trade  with  a  line  of  steamers  to  a  foreign  port  (t),  or  to  take  land 
merely  for  the  purpose  of  selling  it  again  at  a  profit  (u).  A  lead- 
ing case  on  ultra  vires  is  Ashbury  Railway  Carriage  Co.  v.  Riche(.r),  Ashbury 
where  the  directors  of  a  company,  whose  objects,  as  stated  in  the  Railway  Car- 
Memorandum  of  Association,  were  chiefly  (though  not  altogether)  t>-  j 
confined  to  making  and  dealing  in  railway  plant,  agreed  to  pur- 
chase a  concession  for  making  a  railway  in  a  foreign  country. 
"A   statutory   corporation,"  said   Lord  Selborne  in  that  case, 
"created  by  Act  of  Parliament  for  a  particular  purpose  is  limited 
as  to  all  its  powers  by  the  purposes  of  its  incorporation  as  defined 
in  that  Act..    The  present,  and  all  other  companies  incorporated 
by  virtue  of  the  Companies  Act  of  1862,  appear  to  me  to  be  statu- 
tory corporations  within  this  principle.     The  Memorandum  of 
Association  is  under  that  Act  their  fundamental  and  (except  in 
certain  specified  particulars)  their  unalterable  law  ;  and  they  are 
incorporated  only  for  the  objects  and  purposes  expressed  in  that 
memorandum."     But  in  the  later  case  of  Attorney-General  v.  r^ne  *«._ 
Great  Eastern  Railway  Company  (y),  where  it  was  held  not  ultra  Gen.  v.  The 
vires  for  one  railway  company  to  agree  to  supply  another  with  G.  E.  K..C01. 
rolling  stock,  it  was  said  that,  while  the  doctrine  of  ultra  vires  as 
explained  in  Ashbury  Railway  Waggon  Co.  v.  Riche  is  to  be  main- 
tained, it  is  to  be  applied  reasonably,  so  that  whatever  is  fairly 
incidental  to  those  things  which  the  Legislature  has  authorized 
by  an  Act  of  Parliament  ought  not  (unless  expressly  prohibited) 
to  be  held  as  ultra  vires.     So,  in  a  case  decided  about  the  same 
time  as  that  just  referred  to.  it  has  been  held  that  the  directors 
of  a  joint  stock  bank,  the  deed  of  which  gives  them  extensive 
powers  to  carry  on  the  business  of  bankers,  and  to  act  as  may 
appear  to  them  best  calculated  to  promote  the  interest  of  the 
bank,  have  power,  when  the  formation  of  another  company  is  of 

(r)  Lewis  v.  Davison,  4  M  &  («■)   Carington    v.    Wycombe 

W.  654.  Ry.  Co.,  L.  R.  3  Ch.  377. 

0)  Eccles.   Comm.   v.   N.   E.  (.r)  L.  R.  7  H.  L.  653,  and  see 

Ry.  Co.,  4  Ch.  Div.  845.  Baroness  Wenlock  v.  River  Dee 

(t)  Colman  v.  East.  Counties  Company,  10  App.  Ca.  354. 

Ry.  Co.,  10  Beav.  1.  (y)  5  App.  Ca.  473. 
10  COMMON    LAW. 


12G 


ILLEGAL    CONTRACTS. 


importance  to  the  bank,  to  guarantee  the  payment  of  interest  on 
debentures  of  that  company  issued  for  the  purpose  of  forming 
it  (z).  So,  too,  the  directors  of  a  company  may  be  justified  un- 
der their  general  powers  of  management  in  giving  gratuities  to 
their  workmen  as  a  reward  for,  or  incentive  to,  extraexertion  (a). 
The  recent  cases  of  The  Yorkshire  Railway  Waggon  Com- 
pany v.  Maclure  (b)  and  Blackburn  Building  Society  v.  Cunliffe, 
Brooks  &  Co.  (c),  may  also  be  referred  to  on  this  subject. 


Immorality. 


[52.]  PEARCE  v.  BROOKS. 

[L.  R.  1  Ex.  213  (1866).] 

A  coach-builder  who  knows  a  woman  to  be  a  prosti- 
tute cannot  recover  for  the  price  of  a  miniature  broug- 
ham which  he  lets  her  have  on  credit,  and  which  he  is 
well  aware  she  is  going  to  use  as  part  of  her  display  to 
attract  men. 


Cannan  v.  In  deciding  this  case  the  court  followed  Cannan  v.  Bryce  (d), 

Bryce.  where  it  was  held  that  money  lent  and  applied  by  the  borrower 

for  the  purpose  of  settling  losses  on  illegal  stock-jobbing  transac- 
tions, to  which  the  lender  was  no  party,  could  not  be  recovered 
back  by  him. 
Llovd  r.  There  is  a  case  of  Lloyd  v.  Johnson  (e)  which  may  be  thought 

Johnson.  to  some  extent  to  conflict  with  the  Reading  case.     The  action  was 

brought  by  a  laundress  against  a  woman  of  the  town  for  the  wash- 
ing of  a  variety  of  dresses  and  some  gentlemen's  nightcaps,  the 
plaintiff  being  well  aware  of  the  use  to  which  the  latter  were 
put.  It  was  held,  nevertheless,  that  the  plaintiff  was  entitled  to 
recover.  "This  unfortunate  woman,"  said  Buller,  J.,  "must 
have  clean  linen  ;  and  it  is  impossible  for  the  court  to  take  into 
consideration  which  of  these  articles  were  used  for  an  improper 
purpose  and  which  were  not." 

To  defeat  the  plaintiff's  claim  in  an  action  of  this  kind,  when 


(z)  In  re  West  of  England 
Bank,  14  Ch.  Div.  317. 

(«)  Hampson  v.  Price's  Can- 
dle Co.,  W.  N.  1876,  p.  158. 


{b)  51  L.  J.  Ch.  857. 

(c)  22  Ch.  D.  61. 

(d)  3  B.  &  Aid.  179. 
(?)  1  B.  &  P.  340. 


IMMORALITY.  TJ7 

he  knew  the  purpose  his  goods  were  going  to  he  put  to,  it  is  not 
necessary  to  show  that  he  looked  expressly  to  the  profits  of  th< 
prostitution  for  payment. 

A  recent  case  in  Ireland  (/)  well  shows  how  severely  the  law  /;,.  turpi 
regards  this  kind  of  immorality.     The  action   was  by  a  servant  causa*  Won 
girl  against  a  man  who  had  had  carnal  knowledge  of  her  with  oritur  actio. 
her  consent,  but  without  her  knowing  that  he  had  got  a  bad 
venereal  disease.     This  disease  he  communicated  to  her.     In  an 
action  as  for  an  assault,  it  was  held  that,  arising  as  it  did  ex  turpi 
causa,  it  could  not  be  maintained.     It  is  not  obvious,  however, 
how  this  decision  can  be  reconciled  with   the  cases  of  Reg.  v. 
Bennett  (g)  and  Reg.  v.  Sinclair  (/<),  where,  under  similar  circum- 
stances, it  was  held  that  the  man  might  be  convicted  of  an  inde- 
cent assault,  or  of  inflicting  actual  bodily  harm  on  the  principle 
that  fraud  vitiates  consent.     But  the  judgment  of  Fitzgerald.  J., 
even  though  the  student  may  not  agree  with  him,  will  well  re- 
pay perusal. 

The  principles  above  stated  apply  equally  to  all  contracts  hav- 
ing an  immoral  tendency.     In  Foplettr.  Stockdale  (t)  it  was  held 
that  the  printer  of  an  immoral  and  libellous  work  called  the  "The  Me- 
41  Memoirs  of  Harriette  Wilson"  could  not  maintain  an  action  for  nioirsof  Har- 
iris bill  againstthe  publisher  who  employed  him.      "Everyone,"  nel^  Wil- 
said  Best,  C.J.,  who  gives  his  aid  to  such  a  work,  though  as  a 
servant,    is  responsible   for   the    mischief  of  it."     In  Fores  v.  Obscene  car- 
Johnes  (k)  the  defendant  had  told  the  plaintiff,  a  printseller  in  icatures. 
Piccadilly,  to  send  him  "all  the  caricature  prints  that  had  ever 
been  published."     The  plaintiff  accordingly  sent  a  large  quan- 
tity, but  the  defendant  refused  to  receive  them,  on  the  ground 
that  the  collection  contained  several  prints  of  obscene  and  im- 
moral subjects.      "For  prints,"  said   Lawrence,  J.,   "whose  ob- 
jects are  general  satire  or  ridicule  of  prevailing  fashions  or  man- 
ners, I  think  the  plaintiff  may  recover;  but  I  cannot  permit  him 
to  do  so  for  such  whose  tendency  is  immoral  or  obscene;  nor  for 
such   as   are  libels  on  individuals,   and  for  which  the  plaintiff 
might  have  been  rendered  criminally  answerable  for  a  libel." 

{f)  Hegarty  v.  Shine,  Ir.   L.         (A)  13  Cox,  28. 

R.,  vol.  2,  p.  273.  U)  R.  &  M.  337. 

(g)  4  F.  &  F.  1105.  (*•)  4  Esp.  96. 


128 


CONTRACTS    IMPEDING    ADMINISTRATION    OF    LAW. 


Contracts  Impeding  Administration  of  the  Law. 

[53.]  SCOTT  r.  AVERY. 

[5  H.  L.  C.  811  (1855).] 

This  was  an  action  by  a  gentleman  whose  ship  had 
gone  to  the  mermaids  against  a  Newcastle  Insurance 
Association  of  which  both  plaintiff  and  defendant  were 
members.  The  defendants  relied  on  one  of  the  rules  of 
their  association  (which  the  plaintiff  as  a  member  had, 
of  course,  bound  himself  to  observe)  providing  that  no 
member  should  bring  an  action  on  a  policy  till  certain 
arbitrators  had  ascertained  the  amount  that  ought  to  be 
paid.  In  answer  to  that  objection,  the  plaintiff  con- 
tended that  an  agreement  which  ousts  the  superior 
courts  of  their  jurisdiction  is  illegal  and  void,  and  that 
the  rule  relied  on  by  the  defendants  was  of  such  a 
nature. 

This  view,  however,  did  not  prevail.  Judgment  was 
given  for  the  defendants  on  the  ground  that  the  contract 
did  not  oust  the  superior  courts  of  their  jurisdiction,  but 
only  rendered  it  a  condition  precedent  to  an  action  that 
the  amount  to  be  recovered  should  be  first  ascertained  by 
the  persons  specified. 


General  rule. 


Action  for 
breach. 


Gommon 
Daw  Proce- 
dure. 


By  the  common  law  an  agreement  between  private  parties  to 
refer  disputes  to  arbitration,  to  the  exclusion  of  the  jurisdiction 
of  the  ordinary  courts,  is,  generally  speaking,  inoperative,  as  be- 
ing avoidable  on  grounds  of  public  policy.  But  although,  as  a 
rule,  such  an  agreement  will  not  avail  to  oust  the  courts  of  their 
jurisdiction,  and  so  to  prevent  an  injured  party  from  seeking  re- 
dress in  the  ordinary  way,  yet  it  is  so  far  valid  that  an  action 
may  be  successfully  maintained  for  the  breach  of  it.  The  prac- 
tical effect  of  the  common  law  rule  is  not,  however,  very  consid- 
erable, inasmuch  as  the  Legislature  has  virtually  rendered  such 
an  agreement  capable  of  being  enforced.  It  is  provided  by  the 
11th  section  of  the  Common  Law  Procedure  Act,  1854,  that  if  the 
parties  to  any  deed  or  instrument  in  writing  have  agreed  to  refer 


CONTRACTS    IMPEDING    LAW.  129 

any  existing  or  future  differences  to  arbitration,  and  an  action  is  Act   1354 
brought  notwithstanding  the  agreement,  the  court,  or  a  judge  of  sec.  11. 
the  court  in  which  the  action  is  brought,  may  after  appearance 
entered  by  the  defendant,  and  before  plea,  stay  the  proceedings, 
upon  being  satisfied  that  no  sufficient  reason  exists  why  the  mat- 
ters agreed  to  be  referred  cannot  be  or  ought  not  to  be  referred, 
and  that  the  defendant  was  at  the  time  of  the  suit,  and  still  is, 
ready  to  join  in  the  arbitration.     And,  as  may  well  be  supposed, 
the  discretion  thus  given  to  the  court  is  usually  exercised  to 
compel  the  reference  to  arbitration,  except  in  the  presence  of 
special  circumstance  which  would  render  such  compulsion  in- 
equitable.    Thus,  in  a  case  (/)  where  fraud  is  charged,  the  court  No  arbitra- 
will  in  general  refuse  to  send  the  dispute  to  arbitration  if  the  tion  where 
party  charged  with  the  fraud   desires  a  public  inquiry.     But     i 
when  the  objection  to  arbitration  is  raised  by  the  party  charging 
the  fraud,  the  court  will  not  necessarily  accede  to  it,  and,  in- 
deed, will  never   do  so  unless  a  primd  facie  case   of  fraud   is 
proved. 

We  have,  too,  seen  from  the  leading  case  that,  although  a  con- 
tract to  refer  is  in  general  voidable,  it  is  quite  open  to  the  parties 
to  impose  a  condition  precedent  to  the  right  of  action;  as,  for  ex- 
ample, that  the  amount  of  damages  shall  be  ascertained  by  arbi- 
tration, or,  as  in  the  case  of  an  ordinary  building  contract,  that 
the  builder  is  only  to  be  paid  if  the  architect  or  engineer  certi-  Architect's 
fies  that  the  work  has  been  properly  done.     When  such  a  condi-  certificate 
tion  precedent  is  imposed  by  the  agreement  of  the  parties,  no  condition 
action,  of  course,  lies  until  the  condition  upon  which  it  may  be  V 
brought  has  been  duly  performed  (hi). 

The  extent  of  the  decision  in  Scott  v.  Avery  may  be  well  illus- 
trated by  comparing  the  two  cases  of  Dawson  v.  Fitzgerald  (n)  Dawson  v. 
and  Babbage  v.  Coulburn  (0).  In  the  former,  a  lessee  had  cove-  Fitzgerald, 
nanted  with  his  lessor  that  he  would  keep  such  a  number  only 
ot  hares  and  rabbits  as  would  do  no  injury  to  the  crops,  and  that 
in  case  he  kept  such  a  number  as  should  injure  the  crops,  he 
would  pay  a  fair  and  reasonable  compensation,  the  amount  of 
such  compensation,  in  case  of  difference,  to  be  referred  to  arbi- 
tration. The  lessor  having  brought  an  action  for  breach  of  cove- 
nant, it  was  held  that  the  covenant  to  refer  the  amount  of  compensa- 
tion ivas  a  collateral  and  distinct  covenant  from  that  to  pay  for  the 
damage  done,  and,  therefore,  that  the  action  teas  maintainable  al- 
though there  ]l(t(l  been  no  arbitration. 

We  see,  then,  that  the  lessor  might  sue  on  the  covenant  to  pay 
compensation,  leaving  the  lessee  to  pursue  one  of  two  courses — eith- 
er to  bring  an  action  for  not  referring,  or  to  apply  under  the  section 
of  the  Common  Law  Procedure  Act  above  quoted.  If,  however, 
the  court  had  come  to  the  conclusion  that,  on  the  true  construc- 

(/)  Russell  v.   Russell,  L.  R.  Q.  B.  D.  563. 

1  Ch.  D.  471.  (n)  L.  R.  1  Ex.  D.  257. 

(m)  Edwards     v.     Aberavon  (0)  L.  R.  9  Q.  B.  D.  235. 
Mut.  Ship.  Ins.  Com.,  L.  R.  1 


130 


CONTRACTS    IMPEDING    LAW. 


Babbage 
v.  Coulhurn: 


tion  of  the  agreement,  it  amounted  only  to  a  simple  covenant  to 
pay  such  damages  as  should  be  ascertained  by  an  arbitrator,  no  ac- 
tion would  have  lain  till  he  had  so  ascertained  them.  And  now 
let  us  compare  with  this  decision  the  very  recent  case  of  Bahbage 
v.  Coulhurn.  There,  by  a  written  agreement,  the  tenant  of  a  fur- 
nished house  agreed  at  the  expiration  of  the  term  to  deliver  up 
possession  of  the  house  and  furniture  in  good  order,  and  in  the 
event  of  loss,  damage,  or  breakage,  to  make  good  or  pay  for  the 
same,  the  amount  of  such  payment,  if  disputed,  to  be  settled  by 
arbitration.  It  was  held  that  the  settlement  of  this  amount  by 
arbitration  was  a  condition  precedent  to  the  right  of  the  land- 
lord to  bring  an  action  in  respect  of  the  dilapidations.  As  was 
observed  by  Huddleston,  B.,  "The  question  in  all  these  cases  is 
whether  or  not  there  are  separate  and  independent  covenants:  a 
covenant  that  an  act  shall  or  shall  not  be  done,  and  a  covenant 
to  refer.  Here  the  defendant  agreed  to  deliver  up  the  furniture 
in  a  certain  condition,  and  agreed,  not  independently  to  refer, 
but  to  deliver  up  the  furniture  and  pay  any  sum  awarded  by 
the  valuers." 

It  must  be  observed  that  in  many  cases  the  real  question  be- 
tween the  parties  to  an  agreement  containing  an  arbitration 
clause  is  whether  the  matter  in  dispute  is  within  or  without  the 
terms  of  this  clause.  This  generally  is  a  question  for  the  arbi- 
trator himself,  and  not  for  the  court.  In  an  application  on  a 
summons  for  compulsory  reference  under  the  provisions  of  the 
Common  Law  Procedure  Act,  Lord  Selborne  observed  (p):  "It 
struok  me  throughout  that  the  endeavours  of  the  appellants  has 
been  to  require  this  court  to  do  the  very  thing  which  the  arbi- 
trators ought  to  do — that  is  to  say,  to  look  into  the  whole  mat- 
ter, to  construe  the  instrument,  and  to  decide  whether  the  thing 
which  is  complained  of  is  inside  or  outside  the  agreement." 
The  Legislature  has,  for  public  purposes,  established  certain 
Societies,  &c.  exceptions  to  the  general  rule  that  agreements  between  private 
parties  cannot  oust  the  jurisdiction  of  the  courts,  and  has,  in 
some  instances,  made  arbitration  obligatory  by  Act  of  Parlia- 
ment. The  most  notable  examples  are  the  statutory  provisions 
for  reference  to  arbitration  in  the  case  of  friendly  and  building 
societies,  and  the  compulsory  references  under  the  Railway  Com- 
panies Arbitration  Act.  Some  statutes  provide  that  certain  dis- 
putes shall  be  settled  by  arbitration,  and  give  the  court  power 
to  stay  proceedings  in  an  action,  "upon  being  satisfied  that  no 
sufficient  reason  exists  why  the  matter  cannot  be  or  ought  not  to 
be  referred  to  arbitration."  In  such  cases,  the  burden  (q)  lies  on 
the  plaintiff  to  show  some  sufficient  reason  why  the  dispute 
should  not  be  so  referred. 


Friendly 


(p)  Willesford  v.  Watson,  L. 
R.  8  Ch.  Ap.,  at  p.  477,  but  see 
Piercy  v.    Young,  L.  R.  14  Ch. 


D.  200. 

(q)  Hodgson  v.  Railway  Pass. 
Ass.  Co.,  9  Q.  B.  D.  188. 


RESTRAINT  OE  TU.1JJI*.  131 


Restraint  of  Trade. 

MITCHEL  v.  REYNOLDS.  [54.] 

[1  P.  Wms.  181  (1711).] 

Leading  eastwards  from  the  Gray's  Inn  Road,  is,  or 
till  recently  was,  a  street  called  Liquorpond  Street.  In 
that  street,  something  like  200  years  ago,  there  dwelt  a 
prosperous  baker.  So  prosperous  was  he  that  he  baked 
himself  a  fortune  and  retired  on  it  into  private  life. 
But  before  retiring  he  sold  his  business  to  the  plaintiff, 
and  executed  a  bond  in  which  he  undertook  not  to  carry 
on  the  business  of  a  baker  in  the  parish  of  St.  Andrew, 
Holborn,  for  five  years,  under  a  penalty  of  £50.  The 
baker  did  not  know  his  own  mind.  Retirement  did  not 
suit  him.  His  fingers  were  everlastingly  itching  to  be 
in  the  pudding,  and  the  end  of  it  was  that  long  before 
the  five  years  were  over  he  was  baking  away  as  hard  as 
ever,  and  in  the  aforesaid  parish  too.  But  he  had  to 
pay  Mitehel  the  £50. 

A  contract  imposing  an  absolute  restraint  of  trade,  no  matter  for 
how  short  a  time,  is  void  as  being  contrary  to  public  policy.  »But 
a  contract  in  ■partial  restraint  of  trade  may  be  good.  Partial  re- 

To  make  such  a  contract  good,  two  conditions  must  be  com-  straint  good 
plied  with :—  if  reasonable 

(1.)   There  must  be  a  consideration ;  considera- 

and  this  is  necessary  even  though  the  contract  is  under  seal.  tiou. 

(2. )   Tlie  restraint  must  be  a  reasonable  one ; 
that  is  to  say,  it  must  not  be  greater  than  such  as  to  afford  a  fair 
protection  to  the  interest  of  the  party  in  whose  favour  it  is  sub- 
mitted to. 

The  reasonableness  of  a  restraint  differs  according  to  trades 
and  professions;  whether  any  particular  contract  is  reasonable  or 
not,  being  a  question  of  law  for  the  court.     Contracts  that  a  solici-  „  ,.  .. 
tor  shall  not  practise  "  in  London  or  within   150  miles  "  (r)  or 


(r)  Bunn  v.  Guy,  4  East,  190,  business   within   ten   miles   of 

and  see  Nicoll  v.   Beere,   53  L.  Charing   Cross  for   three   years 

T.  N.   S.  659,  where  an  agree-  was  held  reasonable  and  bind- 

ment  by  a  tailor  not  to  carry  on  ing. 


13L' 


RESTRAINT    OF    TRADE. 


Horse-hair 

manufac- 
1  urer. 
Milkman. 
Surgeon. 

Publisher. 


Dentist. 


Contract 
may  be 
partly  good 
and  partly 
bad. 


Roussillon  v, 
Roussillon. 


Pearson  v. 
Pearson. 


(in  another  case)  "  in  any  part  of  Great  Britain  "  (s) ;  that  a  horse- 
hair manufacturer  shall  not  trade  "within  200  miles  of  Birming- 
ham "  (t);  that  a  milkman  shall  not  sell  milk  "within  five  miles 
from  Northampton  Square  in  the  county  of  Middlesex  "  (w);  that 
a  surgeon  shall  not  practise  on  his  own  account  within  seven 
miles  ot  a  country  town  (x),  and  that  a  publisher  shall  not  carry 
on  the  trade  within  150  miles  of  the  General  Post-Office,  Lon- 
don (y),  have  been  held  to  be  valid  contracts  in  partial  restraint 
of  trade.  On  the  other  hand,  an  agreement  that  a  dentist — "a 
moderately  skilful  dentist" — should  abstain  from  practising 
within  100  miles  of  York  was  held  void,  as  the  distance  was 
greater  than  was  necessary  to  protect  the  interest  of  the  person 
with  whom  he  had  contracted  (z). 

A  contract  in  restraint  of  trade  may  be  partly  good  and  partly 
bad.  Thus,  in  Mallan  v.  May  (a),  the  defendant  was  engaged  as 
an  assistant  to  the  plaintiffs,  who  were  dentists,  and  promised 
that,  when  he  left  them,  he  would  not  practise  as  a  dentist  in 
London  or  in  any  other  place  in  England  or  Scotland  where  they 
might  have  been  practising.  This  covenant  was  held  good  as  to 
London  ("  London  "  being  held  to  be  the  city  of  London),  but  bad 
as  to  all  the  other  places.  So  in  a  case  (b)  where  a  person  bound 
himself  not  to  carry  on  the  trade  of  a  perfumer,  toyman,  or  hair 
merchant  within  the  cities  of  London  or  Westminster,  or  within  the 
distance  of  600  miles,  it  was  held  that  the  badness  of  the  restraint 
as  to  the  600  miles  radius  would  not  vitiate  its  goodness  as  to 
London  or  Westminster. 

In  all  these  cases  the  distance  is  measured,  not  by  the  nearest 
convenient  route,  but  as  the  crow  flies  (c). 

It  is  to  be  remarked  that  if  the  restraint  is  reasonable  as  to 
space,  it  does  not  matter  for  how  long  a  time  the  restraint  is  im- 
posed. Until  recently  it  was  thought  that,  if  the  area  was  unlim- 
ited, a  covenant  in  restraint  of  trade  was  on  the  face  ot  it  bad  ; 
and  that  was  stated  to  be  the  law  in  the  first  edition  of  this  work. 
Since  then,  however,  Roussillon  v.  Roussillon  (d)  has  been  decid- 
ed ;  and  that  case  disposes  of  the  old  view,  showing  that  the 
whole  thing  is  a  question  of  reasonableness,  each  case  depending 
on  its  own  circumstances. 

With  regard  to  the  right  of  the  vendor  of  a  good  will  to  set  up 
a  new  business  and  deal  with  his  old  customers,  the  student  should 


(s)  Whittaker    v.    Howe,    3  391. 

Beav.  383.  (z)  Horner  v.  Graves,  7  Bing. 

(t)  Harms  c.  Parsons,  32  Beav.  735. 

328.  («)  11  M.  &  W.  653. 

(m)  Proctor  v.  Sargent,   2  M.  (5)  Price  v.  Green,  16  M.   & 

&  G.  20.  W.  346. 

(x)  Sainter  v.  Ferguson,  7  C.  (c)  Mouflet  v.   Cole,  L.   R.   8 

B.  716.  Ex.  32. 

(y)  Tallis  v.  Tallis,  1  E.  &  B.  ^d)  14  Ch.  D.  351. 


RESTRAINT    OF    MARRIAGE.  133 

refer  to  Pearson  v.  Pearson  (e)  where  (dissentiente  Lindley,  L.  J.), 
the  case  of  Labouehere  v.  Dawson  (/)  was  overruled  in  favour  of 
greater  freedom  of  solicitation." 

Combinations  in  restraint  of  trade,  whether  of  masters  or  of 
men,  are  at  common  law  illegal.  The  great  case  on  the  subject 
is  Hilton  v.  Eckersley  (g),  where  a  bond  entered  into  by  a  num-  Hilton  v 
berofWigan  mill-owners,  who  agreed  to  decide  the  times,  wages,  Eckersley. 
&c,  of  all  their  workmen  according  to  the  resolutions  of  a  ma- 
jority of  themselves,  was  held  void.  But  it  has  been  held  that 
an  agreement  to  parcel  out  among  the  parties  to  it  the  stevedor- 
ing business  of  a  port,  and  so  to  prevent  competition  among  the 
parties  and  to  keep  up  the  price  of  the  work,  is  not  necessarily 
invalid  if  carried  into  effect  by  proper  means  (h).  :'It  is  per- 
fectly lawful,"  said  the  court,  in  another  case  (i),  '"for  the  own- 
ers of  three  quarries  to  agree  that  they  wrill  sell  their  commodi- 
ties upon  terms  suitable  to  themselves,  and  which  they  approve 
of;  and  although  they  know  that  the  purchaser  is  going  to  sup- 
ply, or  offer  to  supply  the  Corporation  of  Birmingham  with  the 
commodity,  that  does  not  in  the  least  restrict  their  right  to  deal 
inter  se,  nor  does  such  dealing  deserve  to  be  characterised  as  a  con- 
spiracy. There  is  nothing  illegal  in  the  owners  of  commodities 
agreeing  that  they  will  sell  as  between  themselves  at  a  certain 
price,  leaving  one  of  them  to  make  any  other  profit  that  he  can." 
Moreover,  the  "Trade  Union  Act,  1871"  (k),  provides  (sec.  3)  Trade  Union 
that  "the  purposes  of  any  trade  union  shall  not,  by  reason  merely  Act  1871. 
that  they  are  in  restraint  of  trade,  be  unlawful  so  as  to  render 
void  or  voidable  any  agreement  or  trust. "  Section  4,  however, 
specifies  certain  exceptions.  .  , 

As  to  market  bye  laws,  see  Strike  v.  Collins,  34  W.  R.  459. 


Restraint  of  Marriage. 


LOWE  v.  PEERS.  [55.] 

[  4  Burr.  2225  (1768).] 

Mr.  Newsham  Peers  was   fool   enough   to   sign,  seal 
and  deliver  a  document  to  this  purport:   — 

"  I  do  hereby  promise  Mrs.  Catherine  Lowe  that  I  mill 

(e)  27  Ch.  D.  145.  (h)  Collins  v.  Locke,  41  L.  T., 

(f)  L.  R.  13  Eq.  322.  N.  S.  292. 

((/)  6  E.  &  B.  67,  and  see  Mo-         (1)   Jones  v.  North,  L.   R.  19 
gul  Steamship  Co.  v.  McGregor,     Eq.  426. 
15  Q.  B.  D.  476.  (fc)  34  &  35  Vict,  c.  31. 


134 


RESTRAINT    OF    MARRIAGE. 


not  marry  with  any  person  besides  herself;  if  I  do,  I 
agree  to  pay  to  the  said  Catherine  Lowe  £1000  within 
three  months  next  after  I  shall  marry  anyone  else." 

Ten  years  afterwards  Peers  married  a  girl  that  was 
not  Catherine  Lowe.  The  injured  lady  brought  an  ac- 
tion on  the  document,  but  after  learned  argument  it  was 
resolved  thaf  it  was  void  as  being  in  restraint  of  mar- 
riage. According  to  the  view  of  the  judges  Mr.  Peer's 
promise  had  not  been  to  marry  Mrs.  Lotve,  as  might 
seem  at  first  sight  to  be  the  case;  but  he  had  promised 
not  to  marry  anybody  except  Mrs.  Lowe:  so  that  if  that 
good  widow  from  caprice,  disinclination,  or  the  claims 
of  conflicting  engagements,  refused  to  marry  him  he 
would  be  compelled  to  be  a  bachelor  all  his  days. 


Reason  oJ 

the  tiling 


Keily  i». 
Monck. 


A  general  restraint  of  marriage  is  against  the  policy  of  the  law, 
because,  as  Lord  Chief  Justice  Wilmot  pointed  out  in  the  leading 
case,  it  encourages  licentiousness,  and  tends  to  depopulation;  and  a 
condition  imposing  such  a  restraint  is  void.  So  also  is  a  condi- 
tion amounting  to  a  probable  prohibition,  as  where  a  testator's 
legacy  to  his  daughter  was  conditional  on  her  marrying  a  man 
with  an  estate  worth  £500  a  year  (/).  "How  many  particular 
professions,"  said  the  Lord  Chancellor,  in  giving  judgment  in 
that  case,  "are  virtually  excluded  by  that  condition?  Whatman 
of  the  profession  of  the  law  has  set  out  with  a  clear  unincumbered 
real  estate  of  £500  a  year,  or  has  acquired  such  an  estate  for  years 
after  his  entering  into  the  profession  ?  How  many  men  of  the  other 
learned  professions  can  come  within  the  condition  ?  It  will  in 
effect  exclude  99  men  in  100  of  every  profession,  whether  civil, 
military,  or  ecclesiastical.  It  in  effect  excludes  nearly  every  mer- 
cantile man  in  the  kingdom,  for  let  his  personal  estate  be  never 
so  great,  unless  he  is  seised  of  a  real  estate  of  the  ascertained  de- 
scription, he  is  excluded.  .  .  .  In  a  word,  the  condition 
which  this  weak  old  man  would  have  imposed  upon  his  daugh- 
ters as  the  price  of  their  portions  does,  to  my  judgment,  clearly 
and  unequivocally  lead  to  a  total  prohibition  of  their  marriage, 
and  as  such  ought  to  be  condemned  in  every  court  of  justice.  And 
1  cannot  but  say  that  the  scene  of  enmity  and  discord  and  disunion 
which  has  now  prevailed  for  years  in  this  family  ought  to  teach 
every  man  who  hears  me  the  mischievous  folly  of  attempting  to 
indulge  his  narrowness  and  caprice  even  after  he  has  sunk  into 


(/)  Keily  v.  Monck,  3  Ridg.  P.  C.  205. 


RESTRAINT    OF    MARRIAGE.  135 

the  grave."  And  even  if  the  restraint  is  not  general,  but  only 
for  two  or  three  years,  there  must  be  some  good  reason  why  the 
contractor  should  be  restrained  from  marrying  during  thut 
period  (m). 

But,  as  the  general  rule,  all  conditions  which  do  not,  directly  or  \\I)W  j.ir 
■indirectly,  import  an  absolute  injunction  to  celibacy  are  valid.  restraint  al 

Thus,  conditions  prohibiting  marriage  before  twenty-one  (n),  or  lowablc. 
with  a  specified  person  (o),  or  with  a  Scotchman  (p),  or  with  a 
papist  (7),  or  with  a  domestic-servant  (r).  are  not  illegal. 

Testators  leaving  young  daughters  frequently  prohibit  their  Consent  of 
marriage  without  the  consent  of  a  trustee.  This  consent,  however,  trustee, 
cannot  be  withheld  corruptly  or  unreasonably  (.s);  and  the  mar- 
riage will  be  allowed  to  take  place  if  it  is  a  proper  one  (/).  It 
appears  to  be  a  moot  point  whether  conditions  requiring  marriage 
with  consent  are  broken  by  a  first  marriage  without  consent,  so 
as  to  disable  a  legatee,  from  taking  upon  a  second  marriage  with 
consent  («). 

Second  marriages  maybe  restrained.  A  husband,  for  instance,  Second 
may  leave  his  widow  an  annuity  yhich  is  to  cease  on  her  marry-  marriages, 
ing  again.  In  Allen  v.  Jackson  (a:),  a  testatrix  gave  the  income 
of  certain  property  to  her  niece  (who  was  her  adopted  daughter) 
and  her  niece's  husband  during  their  joint  lives,  and  to  the  sur- 
vivor during  his  or  her  life,  with  a  proviso  that  if  the  husband 
survived  his  wife  and  married  again,  the  property  should  go  over. 
That  was  just  what  happened.  The  niece  died;  the  widower 
married  again;  and  the  gift  over  took  effect.  "The  present  stat 
of  the  law,''  said  Baggallay,  J. A.,  "as  regards  conditions  in  re- 
straint of  the  second  marriage  of  a  woman  is  this,  that  they  are 
exceptions  from  the  general  rule  that  conditions  in  restraint  of 
marriage  are  void,  and  the  enunciation  of  that  law  has  been 
gradual.  In  the  first  instance,  it  was  confined  to  the  case  of  the 
testator  being  a  husband  of  the  widow.  In  the  next  place,  it  was 
extended  to  the  case  of  a  son  making  the  will  in  favour  of  his 
mother.  That,  I  think,  is  laid  down  in  Godolphin's  Orphan's 
Legacy.  Then  came  the  case  before  Vice-Chancellor  Wood  of 
Newton  r.  Marsden  (y)  in  which  it  was  held  to  be  a  general  ex- 
ception by  whomsoever  the  bequest  may  have  been  made.  Now,  the 
only  distinction  between  those  cases  and  the  present  case  is  this — 
that  they  all  had  reference  to  the  second  marriage  of  a  woman, 
and  this  case  has  reference  to  the  second  marriage  of  a  man. 

(m)  Hartley  v.  Rice,  10  East,  (r)  Jenner  v.  Turner,  43L.T., 

22.  N.  S.  468. 

(n)  Stackpole  v.  Beaumont,  3  (s)  Dashwood  v.  Bulkelev,  10 

Ves.  89.  Ves.  245. 

(0)  Jervois  v.  Duke,   1  Vern.  (t)  Goldsmid  v.  Goldsmid,  G. 

19.  Coop.  225. 

(p)  Perrin   v.   Lyon,  9  East,  («)  See  Randal    v.  Payne,    1 

170.  Bro.  C.  C.  55,  and  Page  v.  Hay- 

(q)  Duggan  v.  Kelly,    10   Ir.  ward,  2  Salk.  570. 

Eq.  Rep.  295.  (x)  1  Ch.  D.  399. 

(y)  2  J.  &  II.  356. 


136 


RESTRAINT    OF    MARRIAGE. 


Marriage 
brokerage 
contracts. 


Future 
separation. 


Immediate 
separation. 


But  no  case  has  been  cited  in  which  a  condition  has  been  held  to 
be  utterly  void  as  regards  the  second  marriage  of  a  man;  and  fol- 
lowing the  analogy  of1  the  other  cases  there  seems  no  reason  at  all 
why  a  distinction  should  be  drawn  between  the  two  sexes." 

Besides  making  contracts  in  general  restraint  of  marriage  void, 
the  law  exhibits  its  tender  regard  for  the  hallowed  institution  by 
declaring  equally  void  a  marriage  brokerage  contract,  that  is,  aeon- 
tract  {e.g.,  with  a  lady's  maid)  to  bring  about  a  particular  mar- 
riage {z).  A  mother  once  told  a  candidate  for  son-in-lawship, 
"You  shall  not  have  my  daughter,  unless  you  will  agree  to  release 
all  accounts."  He  agreed,  but  the  agreement  was  held  to  be  a 
marriage  brokerage  contract,  and  void  {a). 

Similarly,  a  contract  relating  to  the  futiu-e  separation  of  a  mar- 
ried couple  is  illegal  and  void,  for  such  a  state  of  things  ought 
not  to  be  considered  likely  to  come  about;  itought  to  be  absent 
from  the  thoughts  of  the  blissful  pair;  and  indeed  the  contract 
itself  might  lead  t:>  a  separation.  But  a  contract  relating  to  an 
immediate  separation  is  valid,  for  it  is  necessary  to  make  the  best 
of  a  bad  thing  {b).  If,  however,  after  the  separation  deed  has 
been  executed,  the  contemplated  separation  does  not  take  place, 
the  deed  becomes  worthless  and  cannot  be  construed  as  a  volun- 
tary settlement  (c). 

A  covenant  not  to  revoke  a  will  is  not  necessarily  against  pub- 
lic policy  as  being  in  restraint  of  marriage  (d). 


Atheism. 

[56.]  COWAN  v.  MELBOURNE. 

[L.  R.  2  Ex.  230  (1867).] 

Mr.  Cowan  was  in  18G7  the  secretary  of  the  Liver- 
pool Secular  Society,  and  the  defendant  the  proprietor 
of  some  Assembly  Rooms  there.  Cowan  engaged  the 
rooms  for  a  series  of  lectures  to  show  that  Our  Lord's 
character  was  defective,  and  his  teaching   erroneous; 


(z)  Hall  ».  Potter,  3  Lev. 411. 

(a)  Hamilton  v.  Mohum,  1  P. 
Wms.  117. 

(b)  Hindley  v.  Westmeath,  G 
B.  &  C.  200. 


(c)  Bindley  v.  Mulloney,   L. 
R.  7  Eq.  343. 

(d)  Robinson  v.   Ommanney, 
21  Ch.  D.  780. 


ATHEISM.  137 

and  that  the  Bible  was  no  moro  inspired  than  any  other 
book.  At  the  time  the  defendant  let  the  rooms  he  did 
know  the  nature  of  the  lectures  to  be  delivered,  and 
when  he  found  out,  he  declined  to  complete  his  agree- 
ment. The  secularists  now  sued  him  for  breach  of  con- 
tract, but  the  court  decided  that  the  purpose  for  which 
the  plaintiff  intended  to  use  the  rooms  was  illegal,  and 
the  contract  one  which  could  not  bo  enforced  at  law. 
"  Christianity,''''  said  Kelly,  C.B  ,  "is  part  and  parcel  of 
the  larv  of  the  land.'" 

"Christianity  is  part  of  the  law  of  England."     This  is  shown  Christianity 
not  merely  by  the  existence  of  a  church  establishment,  but  by  the  part  of  the 
various  punishments  inflicted,  or  capable  of  being  inflicted,  on  'aw  °f 
persons  who  profanely  curse,  who  break  the  sabbath,  who  use     D^  a 
witchcraft,  or  who  give  expression  to  unorthodox  views.     In  a 
judgment  in  a  slavery  case  (c),  Best,  J.,  says,  "The  proceedings 
in  our  courts  are  founded  upon  the  law  of  England,  and  that 
law  again  is  founded  upon  the  law  of  nature,  and  the  revealed 
law  of  God.     If  the  right  sought   to  be  enforced  is  inconsistent 
with  either  of  these,  the  English  municipal  courts  cannot  recog- 
nize it.'T     Notwithstanding  this  strong  language,    however,  it 
would  appear  that  a  contract  for  the  sale  of  slaves  entered  into  Slavery, 
and  to  be  performed  in  a  country  where  that  unnatural  traffic  is 
lawful  might  be  enforced  in  England  (/). 

The  following  summary  from  the  Law  Times  of  July  22nd,  1882,  Blasphemy, 
on  the  subject  of  blasphemy  may  be  of  interest : — 

"  Of  the  leading  cases  on  this  subject  the  earliest  on  record  is 
that  of  one  Atwood,  in  15  Jac.  1,  who  was  convicted  of  speaking 
words  reflecting  on  religious  preaching,  viz.,  that  it  was  'but 
prating,  and  the  hearing  of  service  more  edifying  than  two  hours 
preaching.'  Notice  may  also  be  made  of  the  trial  of  one  Taylor 
(Vent.  293),  for  uttering  gross  blasphemies,  in  the  course  of  which 
Chief  Justice  Hale  observed  that  to  say  religion  is  a  cheat  is  to 
dissolve  all  those  obligations  whereby  civil  society  is  preserved  ; 
that  Christianity  is  part  of  the  laws  of  England,  and  therefore  to 
reproach  the  Christian  religion  is  to  speak  in  subversion  of  the 
law.  On  the  same  ground  a  conviction  was  sustained  in  the  case 
of  R.  v.  Woolston  (Str.  834),  where  the  libel  stated  that  Christ 
was  an  imposter  and  fanatic,  and  his  life  and  miracles  were 
turned  into  ridicule.  In  1763,  again,  one  Annett  was  convicted 
of  publishing  a  libel  called  'The  Free  Inquirer,'  tending  to  ridi- 

(e)  Forbes  v.  Cochrane,  2  B.         (f)  Santos  r.  Illidge,  6C.  B., 

&  C.  448.  N.  S. 


138  ATHEISM. 

cnle  the  Scriptures,  and  particularly  the  Pentateuch,  by  repre- 
senting Moses  as  an  imposter  ;  and  a  similar  result  followed  the 
case  of  R.  t>.  Williams,  in  1797,  for  puhlishing  Paine's  'Age  of 
Reason,'  in  which  the  authority  of  the  Old  and  New  Testament 
was  denied,  and  the  prophets  and  Christ  were  ridiculed.  The 
same  doctrine  has  heen  fully  recognized  in  other  cases,  one  of  the 
latest,  perhaps,  being  that  of  Carlile  (3  B.  &  Aid.  161),  who,  in 
1820,  was  sentenced  to  pay  a  fine  of  £1,500,  to  he  imprisoned  for 
three  years,  and  to  find  sureties  for  his  good  behaviour  during  life. 

"  But,  besides  the  common  law,  the  Legislature  itself  has  made 
certain  provisions  against  this  kind  of  offence.  The  statute  1 
Edw.  6,  c.  1,  for  example,  enacts  that  persons  reviling  the  sac- 
rament of  the  Lord's  Supper  by  contemptuous  words  or  other- 
wise shall  suffer  imprisonment.  By  1  Eliz.  c.  2,  again,  if  any 
minister  shall  speak  anything  in  derogation  of  the  Book  of  Com- 
mon Prayer,  he  shall  be  punishable,  as  there  mentioned,  by  im- 
prisonment and  loss  of  benefice.  So  also,  by  3  Jac.  1,  c.  21,  who- 
ever shall  use  the  name  of  the  Holy  Trinity  profanely  or  jestingly 
in  any  stage-play  or  show,  is  made  liable  to  a  fine  of  £10.  Lastly, 
by  9  &  10  Will.  3,  c.  30,  it  is  enacted  that,  if  any  person  educated 
in,  or  having  made  profession  of,  the  Christian  religion,  shall  by 
writing,  teaching,  or  advised  speaking,  assert  that  there  are  more 
gods  than  one,  or  deny  the  Christian  religion  to  be  true,  or  the 
Scriptures  to  be  of  Divine  authority,  he  shall,  upon  the  first  of- 
fence, be  incapable  of  holding  any  office  or  trust  ;  and  on  the  sec- 
ond conviction  shall  be  for  ever  incapable  to  bring  any  action,  or 
to  bear  any  office  or  benefice,  and  further  shall  suffer  imprison- 
ment for  three  years.  It  has  been  held,  moreover,  that  the  effect 
of  this  enactment  is  cumulative,  and  that  an  offender  against  it 
is  still  punishable  at  the  common  law." 

In  the  recent  case  of  Reg.  v.  Ramsay  and  Foote  (</),  where  the 
defendants  were  indicted  for  the  publication  of  blasphemous  li- 
bels in  a  newspaper  called  the  Freethinker,  the  jury  were  directed 
that  a  blasphemous  libel  did  not  consist  in  an  honest  denial  of 
the  truths  of  the  Christian  religion,  but  in  "a  wilful  intention  to 
pervert,  insult,  and  mislead  others  by  means  of  licentious  and 
contumelious  abuse  applied  to  sacred  subjects."  The  summing 
up  by  Lord  Coleridge,  C.J.,  though  the  law  may  not  be  alto- 
gether sound,  is  an  admirable  specimen  of  judicial  eloquence, 
and  deserves  the  student's  careful  attention.  "It  is  no  longer 
true,"  he  said  in  the  course  of  that  address,  "in  the  sense  in 
which  it  was  true  when  these  dicta  were  uttered,  that  Christian- 
ity is  part  of  the  law  of  the  land To  base  the 

prosecution  of  a  bare  denial  of  the  truth  of  Christianity  simpLieiter 
and  per  se  on  the  ground  that  Christianity  is  part  of  the  law  of 
the  land,  in  the  sense  in  which  it  was  said  to  be  so  by  Lord  Hale, 

(g)  48  L.  T.,  N.  S.  733. 


ATHEISM.  139 

and  Lord  Raymond,  and  Lord  Tenterden,  is  in  my  judgment  a 
mistake.  It  is  to  forget  that  law  grows,  and  that,  though  the 
principles  of  law  remain  unchanged,  yet  (and  it  is  one  of  the  ad- 
vantages of  the  common  law)  their  application  is  to  be  changed 
with  the  changing  circumstances  of  the  times.  Some  persons 
may  call  this  retrogression  ;  I  call  it  progression  of  human  opin- 
ion. Therefore  to  take  up  a  book  or  a  paper,  to  discover  merely 
that  in  it  the  truth  of  Christianity  is  denied  without  more,  and 
therefore  to  say  that  now  a  man  may  be  indicted  upon  such  de- 
nial as  for  a  blasphemous  libel  is,  as  I  venture  to  think,  abso- 
lutely untrue.  I,  for  one,  positively  refuse  to  lay  that  down  as 
law,  unless  it  is  authoritatively  so  declared  by  some  tribunal  I 
am  bound  by  "  (h). 

It  was  formerly  supposed  that  persons  not  professing  the  Chris-  Omichund  r. 
tian  faith  were  incompetent  as  witnesses.     In  the   great  case  of  Barker. 
Omichund  v.  Barker  (i),  however,  it  was  settled  that  it  was  not 
so  much  a  belief  in  Christianity  as  a  belief  in  a  God  that  was  re- 
quired from  a  witness;  and  the  depositions  of  witnesses  profess- 
ing the  Gentoo  religion,  who  were  sworn  according  to  the  cere- 
monies of  their  religion,  taken  under  a  Commission  out  of  Chan- 
cery, were  admitted  to  be  read  in  evidence.     But  many  persons 
were  found  who,  though  quite  competent  as  witnesses,  objected 
altogether  on  religious  grounds  to  taking  oaths;  and  Acts  of  Par- 
liament had  to  be  passed  relieving  them  from   the  necessity  of 
doing  so,  and  permitting  them  to  make  affirmations  instead  (k). 
These  Acts,  however,  did  not  meet  the  case  of  an  atheist,  who,  Atheists  as 
though  quite  willing  to  take  an  oath,  might  be  objected  to  as  in-  witnesses, 
competent.     But  now,  by  32  &  33  Vict.  c.  68,  s.  4,  such  a  person 
may,  "  if  the  presiding  judge  is  satisfied  that  the  taking  of  an 
oath  would  have  no  binding  effect  on  his  conscience,"  give  evi- 
dence on  his  making  a  solemn  promise  to  tell  the  truth. 

That  "Christianity  is  part  of  the  law  of  England  "  has  also  Jews  as 
been  painfully  proved  by  the  difficulties  thrown  in  the  way  of  M.  P.  s. 
Jews  who  desired  to  sit  in  the  House  of  Commons.  In  Miller  v. 
Salomons  (/)  it  was  held  that  the  words  "  upon  the  true  faith  of 
a  Christian  "  were  not  a  mere  form  of  swearing,  but  au  essential 
part  of  the  oath  of  abjm-ation  required  by  6  Geo.  III.  c.  53  ;  so 
that  Jews  were  effectually  excluded  from  sitting  and  voting.  In 
1858,  after  a  long  and  acrimonious  struggle,  a  modification  of  the 


(/()   This    passage,    however,  ince  of  the  Legislature." 

contained  (as  the  "Law  Times"  ((')  Willes,  538. 

for  May  5th,  1883,  very  truly  (k)  See  17  &  18  Vict.  c.  125, 

says)  "a most  dangerous  princi-  s.  20  (civil  cases);  and  24  &  25 

pie,"  and  shows  that  "judicial  Vict.  c.  66  (criminal  cases), 

claims,  not  to  expound,  but  to  (/)  7  Ex.  475.     See  also  Att.- 

makelawto  suit  the  times  must  Gen.  v.   Bradlaugh,  14  Q.  B.  D. 

be  watched  so  as  to   avoid   the  667,  as  to  persons  having  no  be- 

dangerof  infringing'ontheprov-  lief  in  a  Supreme  Being. 


140 


ATHEISM. 


Abolition  of 

oaths. 


Cremation. 


Simony. 


Mosse  r. 
Killick. 


Resignation 

bonds. 


oath  in  favour  cf  Jews  was  effected  (m),  and  since  that  time  they 
have  frequently  sat  in  Parliament  with  credit  to  themselves  and 
benefit  to  the  country.  "Whether  the  time  has  not  now  come 
when  all  oaths,  whether  in  the  witness  box,  in  Parliament,  or 
elsewhere,  might  advantageously  be  abolished,  is  a  question  that 
has  for  some  time  occupied  the  attention  of  thoughtful  men. 

Cremation  is  illegal  according  to  the  common  law,  the  Chris- 
tian method  of  disposing  of  the  dead  being  by  burial  (n).  Inde- 
pendently of  the  principle  that  "Christianity  is  part  of  the  law 
of  England,"  it  may  be  doubted  whether  a  contract  for  cremat- 
ing a  dead  body  would  not  be  contrary  to  public  policy,  as  de- 
stroying evidence  as  to  the  mode  of  death. 

Simony  (so  called,  it  is  said,  in  allusion  to  Simon  the  Sorcerer, 
who  "offered  them  money,"  Acts  viii.  18)  may  be  mentioned  in 
this  connection.  The  leading  case  on  the  subject  is  Fox  v.  the 
Bishop  of  Chester  (o),  where  it  was  held  that  the  sale  of  the  next 
presentation  to  a  living  (Wilmslow)  was  not  necessarily  bad  un- 
der 31  Eliz.  c.  6,  because  the  incumbent  was  dying.  But  it 
would  have  been,  if  the  purchaser  had  intended  to  present  a  par- 
ticular clergyman,  or  if  the  living  had  been  actually  vacant  at 
the  time  of  the  contract.  It  is  also  simony  for  a  clergyman 
to  buy  the  next  presentation,  and  get  himself  presented  to  the 
living  {p).  A  recent  case  on  simony  is  Mosse  v.  Killick  (q), 
where  the  plaintiff,  who  was  the  incumbent  and  patron  of  a  liv- 
ing in  Yorkshire,  put  the  rectory  into  repair  and  with  the  sanc- 
tion of  his  bishop,  let  it  to  a  tenant  for  a  certain  period.  Before 
the  termination  of  the  tenancy  the  plaintiff  resigned  the  living, 
and  presented  the  defendant  to  it.  The  presentation  was  made 
on  the  understanding  and  agreement  that  the  defendant  should, 
in  consideration  of  having  received  the  benefit  of  the  repairs,  hand 
over  to  the  plaintiff  any  rent  he  received  in  respect  of  the  ten- 
ancy between  the  date  of  the  presentation  and  the  termination 
of  the  tenancy.  It  was  held  that  this  was  a  simoniacal  agree- 
ment, and  the  presentation  therefore  void  under  31  Eliz.  c.  6. 
Resignation  bonds  (/.  e. ,  engagements  by  persons  presented  to  liv- 
ings to  resign  at  some  future  period)  were  formerly  void  ;  and 
general  resignation  bonds  are  so  still.  But  9  Gen.  IV.  c.  94  now 
enables  a  clergyman  before  being  presented  to  bind  himself  to 
resign  in  favour  of  some  specified  person.  If  the  bond  is  made 
in  favour  of  two  persons,  each  of  them  must  be,  either  by  blood 
or  marriage,  a  near  relation  of  the  patron. 

For  an  interesting  recent  case  on  church  rates,  see  Bell  v.  Bas- 
sett,  52  L.  J.,  Q.  B.  D.,  22. 


(m)  21  &  22  Vict.'ce.  48  and  49. 

(n)  Williams  v.  Williams,  46 
L.  T.,  N.  S.  275,  and  see  R.  v. 
Stephenson,  13  Q.  B.  D.  331. 


(o)  6  Bing.  1. 

(p)  Winchcombe  v.    Bp.     of 
Winchester,  Hob.  Ifi5. 
{q)  50  L.  J.  Q.  B.  300. 


SABBATH-BREAKING.  141 


Sabbatli-breakin  g. 

SCARFE  v.  MORGAN.  [57.] 

[4  M.  &  W.  -210  (1838).] 

The  defendant  was  a  farmer,  and  circulated  a  printed 
card  to  the  effect  that  a  certain  horse  of  his  would  be 
ready  to  receive  mares  on  Sundays.  The  stallion  had  a 
good  reputation,  and  so  Scarfe  (who  had  before  had 
dealings  with  Morgan)  sent  a  mare  to  be  covered  by 
him.  Some  difficulty  arising  about  payment,  Morgan 
refused  to  give  up  the  mare  until  all  his  demands  were 
satisfied,  and  Scarfe  brought  this  action  of  trover. 
One  of  Scarfe's  main  points  was  that  the  contract  was 
illegal  as  having  been  made  on  Sunday.  The  point, 
however,  was  overruled,  chiefly  on  the  ground  that  the 
farmer's  allowing  his  stallion  to  cover  mares  ?ra.s  not 
trading  in  the  course  of  his  ordinary  calling,  to  which 
alone  the  statute  referred. 


Contracts  made  on  Sunday  are  unlawful  under  29  Car.  2,  c.  7,  Act  of 
which  provides  that  "  no  tradesman,  artificer,  workman,  labourer,  Charles  II. 
or  other  person  whatsoever  shall  do  or  exercise  any  worldly  la- 
hour,  business,  or  work  of  their  ordinary  callings  upon  the  Lord's 
Day,  or  any  part  thereof,  works  of  necessity  and  charity  only  ex- 
cepted "  (r),  the  intention  of  the  Act  being,  as  a  judge  said  in 
1826,  "to  advance  the  interests  of  religion,  to  turn  a  man's 
thoughts  from  his  worldly  concerns,  and  to  direct  them  to  the 
duties  of  piety  and  religion;"  and  his  lordship  adds  that,  "the 
Act  cannot  be  construed  according  to  its  spirit  unless  it  is  so 
construed  as  to  check  the  career  of  worldly  traffic."  (s).  The 
student's  attention  is  requested  to  the  following  points: — 

(1.)  The  words  "or  other  person  whatsoever" — on  the  prin-  "or  other 
ciple  that  general  words  are  to  be  narrowed  down  by  particular  person   what- 
words  which  precede  them — have  been  interpreted  to  mean  "or  soever. 


(r)   "Every  person  being  of  v.  Durden,  p.  .'548. 
the  age  of  fourteen  years  or  up-         (s)  Fennell  v.  Ridler,  5  B.  & 

wards  offending  in 'the  premi-  C.    406.      See,    however,    Lord 

ses  shall  for  every  such  offence  Kenyon's  sensible  remarks  in 

forfeit  the  sum  of  5s."     Crepps  R.  v.  Younger,  5  T.  K.  451. 
11   COMMON   LAW. 


142 


SABBATH-BKEAKING. 


Farmers 


"Of  their 
ordinary 

callings." 


Must  be 
complete. 


Sunday 
shaving. 


Provisions. 


Sunday 
amusements, 


other  person   whatsoever   of  the  '  tradesman,   artificer,   workman, 
or  labourer '  class." 

On  this  construction  it  may  he  remarked  that,  since  Scarfc  v. 
.Mori/a,i  -was  decided,  it  has  been  held  that  a  farmer  does  not 
come  within  the  description  "or  other  person  whatsoever,"  as 
just  explained,  so  that  the  decision  ought  to  have  been  in  Mor- 
gan's favour  on  a  different  ground  and  at  an  earlier  period  (/). 

(2.)  To  make  the  contract  void,  it  must  hare  been  made  within 
the  person's  "  ordinary  calling."  For  example,  while  the  sale  of  a 
horse  on  Sunday  by  a  horse-dealt  r  would  be  void,  such  a  sale  by  an 
ordinary  person,  though  within  the  specified  classes,  would  not 
he  (m).  So,  the  hiring  of  a  labourer  by  a  farmer  (x),  a  guarantee 
given  for  the  faithful  services  of  a  commercial  traveller  (y),  and 
an  attorney's  agreement  (on  which  he  made  himself  personally 
liable)  for  settling  the  affairs  of  a  client  (.?),  have  been  held  not 
to  be  vitiated  by  the  contracts  having  been  entered  into  on  Sun- 
day. 

(3.)  To  make  a  contract  void,  it  must  be  complete  on  Sunday. 
If,  however,  a  contract  of  sale  {e.g.,  of  goods  of  the  value  of  £10) 
is  concluded  on  Sunday,  it  will  not  be  purged  of  its  taint  merely 
because  the  goods  are  not  delivered,  nor  any  part  of  the  price 
paid,  till  a  subsequent  week-day  («). 

In  a  case  in  which  a  Scotch^boy,  apprenticed  to  a  barber,  de- 
clined to  shave  his  master's  customers  on  Sunday,  it  has  been 
held  by  the  House  of  Lords  that  shaving  is  not  a  "  work  of  neces- 
sity and  charity  "  within  the  exception  of  the  Act  (b). 

"  It  was  said  in  the  court  below,"  remarked  Lord  Brougham, 
"that  unless  working  persons,  who  do  not  themselves  shave 
their  beards,  were  allowed  to  resort  to  the  barber's  shops  on  Sun- 
days, many  decently  disposed  men  would  be  prevented  from  fre- 
quenting places  of  worship,  and  from  associating  Avith  their  fam- 
ilies or  friends,  from  want  of  personal  cleanliness.  But  ivhy 
should  they  not  do  the  work  on  Saturday?" 

Meat,  milk,  mackerel,  and  bread  are  to  a  great  extent  ex- 
cepted from  the  operation  of  the  Act. 

21  Geo.  III.  c.  49,  provides  that  any  house  opened  for  public 
amusement  or  debate  on  Sunday,  to  which  persons  are  admitted  by 


(t)  R.  v.  Silvester,  33  L.  J., 
M.  C,  79;  and  see  Sandiman  v. 
Breach,  7  B.  &  C.  96,  where  it 
was  held  that  the  Act  did  not 
apply  to  a  stage-coachman. 

(■«)  Drurv  v.  De  La  Fontaine, 
1  Taunt.  131. 

(x)  R.  v.  Whitnash,  7  B.  & 
C.  596. 

(y)  Norton  v.  Powell,  4  M. 
&  G.  42. 


(z)  Peate  v.  Dicken,  1  G.  M. 
&  R.  422.  It  appears  to  be  a 
moot  point  (Peate  v.  Dicken,  1 
G.  M.  &  R.  428)  whether  an  at- 
torney is  within  the  statute. 
Probably  he  is  not. 

[a)  Bloxsome  v.  Williams,  3 
B.  &  C.  232,  and  Simpson  v. 
Nicholls.  3  M.  &  W.  240. 

(b)  Phillips  v.  Innes,  4  CI.  & 
F.  234. 


SABBATH-BREAKING.  143 

payment  of  money,  shall  be  deemed  a  disorderly  house,  and  the 
keeper  of  it  shall  forfeit  £200  for  every  Sunday  it  is  so  used.  A 
place  •where  sacred  music  is  performed,  and  an  instructive  ad- 
dress of  a  religious  or,  at  all  events,  neutral  character  given,  lias 
been  held  not  to  be  within  the  statute  (c);  but  an  aquarium,  not- 
withstanding sacred  music  and  real  fish,  is  (rf). 

The  leading  case  is  also  an  authority  on  the  law  of  lien,  it  hav-  Lein— fenc- 
ing been  held  that  the  owner  of  a  stallion   has  a  lien  on  a  mare  la'  ;uu'  l,ar" 
sent  to  be  covered.      Independently  of   agreement  (by   which  a-  l 
lien  may,  of  course,  exist,  or  be  dispensed  with  where   it  would 
otherwise  exist),  liens  in  law  are  of  two  kinds,  particular  andgt  u- 
cral. 

If  I  am  a  watchmaker,  and  you  send  me  your  watch  to  mend, 
the  right  that  I  have  to  keep  it  till  you  pay  for  its  mending  is  a 
particular  lien.  Such  a  lien  exists  over  all  goods  on  which  the 
person  claiming  the  lien  has  bestowed  unpaid-for  time  and  trou- 
ble, and,  very  reasonably,  is  favoured  by  the  law.  But  no  charge 
can  be  made  for  warehousing  (e). 

General  liens  are  liens  in  respect  of  a  general  balance  due.  They 
are  not  favoured  by  the  law,  and  exist  only  by  virtue  of  agree- 
ment, or  custom,  or  the  previous  dealings  of  the  parties.  Solic- 
itors, bankers  (/),  wharfingers,  factors,  insurance  brokers,  and, 
it  is  said,  common  carriers  [g),  have  general  liens. 

The  lien  of  a  solicitor  is  important  enough  to  deserve  a  word 
of  special  notice.  A  solicitor  has  a  lien  for  his  professional  charges  Solicitor's 
on  all  deeds  and  documents  of  his  clients  that  come  properly  into  lien, 
his  possession,  and  also  on  money  recovered,  litigiously  or  by  com- 
promise, in  the  cause.  But,  when  required  to  produce  a  docu- 
ment Under  a  subpoena  duces  tecum,  he  cannot  refuse  to  do  so  merely 
because  it  has  not  been  paid  for  and  he  claims  a  lien  on  it  (/;). 
Nor  does  his  lien  extend  to  alimony  pendente,  lite  paid  over  to  him 
as  such,  unless  he  holds  the  wife's  written  authority  to  him  to 
receive  it  as  her  agent  (/).  But  by  23  &  24  Vict,  c.  127,  s.  28, 
the  court  before  which  any  proceedings  come  ma}'  order  the  so- 
licitor's costs  to  be  made  a  charge  on  the  property  recovered.  In 
Boughton  v.  Boughton  (J),  it  was  held  that  a  solicitor  could  not 
assert  his  lien  in  such  a  way  as  to  embarrass  the  proceedings  in 
the  suit.  But  a  solicitor  by  whose  instrumentality  a  judgment 
for  payment  of  a  sum  of  money  is  obtained  is  not  the  less  enti- 
tled to  a  lien  on  the  money  for  his  costs  because  he  ceased  to  be 
the  solicitor  before,  the  trial  (/:). 

(c)  Baxter  v.  Langley,  L.  R.  (17)  Rushforth  v.  Hadlield.  7 
4  C.  P.  21.  East,  224,  and  Aspinall  r.  Pick- 

(d)  Terry  v.  Brighton  Aqua-     ford,  3  Bos.  &  P.  44. 

rium  Co.,  L.  R.  10  Q.  B.  306.  (h)   Fowler   v.  Fowler,  50  L. 

(e)  Bruce  v.  Everson,  1  C.  &    J.,  Ch.  686. 

E.  18.  (*)  Cross  v.  Cross,  43  L.  T.,  N. 

(/)  Lond.  Chart,  Bank  of  Aus-  S.  533. 

traiia  v.  White,  4  App.  Ca.  413,  (j)   23  Ch.  Div.   169,  and  see 

and  see  Leese  v.  Martin,  L.  R.  Be  Galland,  53  L.  T.  921. 

17  Eq.  224.  (k)  54  L.  J.  Ch.  638. 


144  WAGERING    CONTRACTS. 


Wagering  Contracts. 

[58.]  DIGGLE  v.  HIGGS. 

[  Ex.  Div.  422  (1877).] 

A  couple  of  athletes  named  Sinimonite  and  Diggle 
agreed  to  walk  one  another  at  the  Higginshaw  Grounds, 
Oldham,  for  £200  a  side,  Perkins  to  be  referee,  and 
Higgs  final  stakeholder  and  pistol  firer.  The  match 
duly  came  off,  and  Perkins  decided  that  Simmonite  had 
won.  This  decision  would  seem  not  to  have  met  the 
approval  of  Mr.  Diggle,  who  gave  Higgs  formal  notice 
not  to  pay  over  the  stakes  to  Simmonite,  and  demanded 
back  his  £200.  In  spite  of  this  notice,  Higgs  paid  Sim- 
monite the  whole  £400,  and  became  the  defendant  in 
this  action. 

For  the  plaintiff  it  was  contended  that  the  agreement 
was  a  wager,  and  therefore  that  he  he  had  a  right  to  de- 
mand back  the  §wm  deposited  by  him  before  it  was  paid 
over.  The  defendant,  on  the  other  hand,  said  that  the 
agreement  came  within  the  proviso  of  8  &  9  Vict.  c. 
109,  s.  18,  which  rendered  lawful  "a  subscription  or 
contribution  for  a  sum  of  money  to  be  awarded  to  the 
winner  of  a  lawful  game."  and  his  friends  relied  on  a 
5  C.  B.  818.  certain  case  of  Batty  v.  Marriott,  where  it  was  held  that 
a  foot-race  came  within  the  proviso. 

The  judges,  however,  overruled  that  case,  and  gave 
Mr.  Diggle  back  his  money. 

Wagers  gen-  At  common  law  wagers,  not  being  indecent,  or  contrary  to  pub- 
erally  en-  ]jc  policy,  or  hurtful  to  the  feelings  of  third  parties,  could  be  en- 
forceable at  force(j  by  action.  But  wagers  as  to  the  sex  of  a  person  (I),  as  to 
•ommon  law.  J  .     .  °      .    .  x  v    ' 

the  issue  of  a  criminal  trial   (>«),  as  to  whether  an  unmarried 

(I)  De  Costa  v  Jones,  Cowp.  (m)  Evans  v  Jones,  5  M.  & 
729.  W.  77. 


WAGERING    CONTRACTS.  145 

woman  would  have  a  child  hefore  a  certain  time  (»),  or  as  to  the 
result  of  a  parliamentary  election  (o),  were  held  to  be  unlawful. 
And,  even  when  the  subject-matter  of  a  wager  was  quite  inno- 
cent, if  it  were  of  a  very  frivolous  character,  the  judges  would 
sometimes,  in  an  arbitrary  fashion,  refuse  to  try  the  case.  It 
seems  also  that  at  common  law  contracts  by  way  of  gaming  were 
lawful  (p).  But  in  1845,  after  previous  efforts  in  the  same  direr-  \ct  of  184."). 
tion,  the  Legislature  enacted  (q)  "that  all  contracts  or  agreements, 
whether  by  parol  or  in  writing,  by  way  of  gaming  or  wagering, 
shall  be  null  and  void  ;  and  that  no  suit  shall  be  brought  pr  main- 
tained in  any  court  of  law  or  equity  for  recovering  any  sum  of 
money  or  valuable  thing  alleged  to  be  won  upon  any  wager,  or 
which  shall  have  been  deposited  in  the  hands  of  any  person  to  abide  the 
event  on  which  any  wager  shall  have  been,  made:  provided  always, 
that  this  enactment  shall  not  be  deemed  to  apply  to  any  subscrip- 
tion or  contribution,  or  agreement  to  subscribe  or  contribute,  for 
or  towards  any  plate,  prize,  or  sum  of  money  to  be  awarded  to 
the  winner  or  winners  of  any  lawful  game,  sport,  pastime,  or  ex- 
ercise." '  The  words  italicised  might  at  first  sight  seem  fatal  to  a  Recovering 
claim  like  Diggle's;  but  it  had  been  expressly  held  in  a  previous  deposit, 
case  that  they  did  not  prevent  a  person  from  claiming  back  his 
own  deposit  at  any  time  before  it  was  paid  over  to  his  adversary 
and  on  repudiating  the  wager  (r). 

The  intention  of  the  Act,  it  has  been  held,  is  to  strike  not  Wagering  on 
merely  at  wagering  on  unlawful  games,  but  at  wagering  even  on  lawful  games 
lawful  games  (rr). 

Hampden  v.  Walsh  (s)  is  an  authority  to  the  same  effect  as  js  \]H.  WOrld 
Diggle  v.  Higgs.  A  person  named  Hampden  got  it  into  his  head  really  round? 
that  it  was  a  popular  error  to  suppose  the  world  was  round,  and 
advertised  a  challenge  in  the  newspapers  to  any  scientific  man  to 
prove  it,  each  side  to  deposit  £500  to  abide  the  issue.  The  chal- 
lenge was  accepted  by  a  Mr.  Wallace,  and  the  money  duly  placed 
in  the  hands  of  the  defendant  as  stakeholder.  Experiments  were 
then  made  on  the  Bedford  Level  Canal,  and  eventually,  of  course, 
the  referee  decided  in  favour  of  rotundity.  Walsh  then  gave 
Hampden  notice  that  he  should  pay  over  the  money  to  Wallace. 
Hampden  objected,  and  demanded  back  his  money,  which,  how- 
ever, Walsh  proceeded  to  pay  to  Wallace.  In  an  action  against 
him  for  having  done  so,  it  was  held  that  Hampden  was  entitled 
to  recover  his  deposit,  the  affair  being  a  mere  wager. 

Although  wagers  are  "  null  and  void,"  they  are  not  absolutely  "Null  and 

void." 


(n)  Ditchburn  v.  Goldsmith, 4  (r)  Varney  v.  Hickman,  5  C. 

Camp.  152.  B.  271. 

(o)  Allen  v.  Hearn,  1  T.  R.56.  (rr)  Parsons  v.   Alexander,  5 

(p)  Sherbon   v.   Colebach,    2  E.  &  B.  263. 

Vent,  175.  (s)  1  Q.  B.  D.  189,  and  see 

(q)  8  &  9  Vict.  c.  109,  s  18.  Trimble  ».  Hill,  5  App.  Ca.342. 


146 


WAGERING   CONTRACTS. 


Beeston  v. 
Beeston. 


A  tip  for  the 

Grand 

National. 


Buhb  v. 
Yelverton. 


Stock  Ex- 
change trans- 
actions. 


illegal.  Thus,  if  a  man  loses  a  wager,  and  gets  another  to  pay  the 
money  for  him,  an  action  lies  for  the  recovery  of  the  money  so 
paid  [t).  And  so  if  A.  requests  B.  to  make  a  bet  for  him  with  C. 
on  a  particular  horse,  and  then,  after  B.  has  done  so,  the  horse 
loses,  B.  may,  notwithstanding  the  statute,  recover  from  A.  the 
money  he  has  had  to  pay  C.  («)•  In  Beeston  v.  Beeston  (x)  it 
appeared  that  the  plaintiff  had  paid  the  defendant  money  to  in- 
vest for  him  in  betting  on  horse-races.  The  right  horses  won,  and 
the  defendent  gave  the  plaintiff  a  cheque,  which  was  afterwards 
dishonoured.  In  an  action  on  the  cheque  the  defence  was  raised 
that  it  was  an  attempt  to  enforce  a  contract  prohibited  by  statute. 
It  was  held,  however,  that  betting  on  horse-races  was  not  illegal 
in  the  sense  of  tainting  any  transaction  connected  with  it. 
Beeston  v.  Beeston  (x)  was  distinguished  in  the  later  case  of 
Higginson  v.  Simpson  (z).  There  the  plaintiff  was  a  tipster,  and 
gave  the  defendant  "Regal"  as  the  probable  winner  of  the  Grand 
National.  It  was  agreed  between  them  that  the  plaintiff  should 
have  £2  on  "Regal"  at  25  to  1  against  the  horse  for  that  race  ; 
that  is  to  say,  that  if  the  defendant  backed  "Regal"  for  the 
Grand  National,  and  the  horse  won,  the  plaintiff  was  to  have  £50 
out  of  the  defendant's  winnings,  but  if  the  horse  lost,  the  plain- 
tiff was  to  pay  the  defendant  £2.  Accordingly,  the  defendant 
backed  "  Regal,"  and  it  won.  Ungrateful  for  his  tip,  however, 
he  refused  to  pay  the  plaintiff  the  £50;  and  it  was  held  that  the 
money  could  not  be  recovered  by  action  because  the  agreement 
was  void  within  8  &  9  Vict.  c.  109,  s.  18.  So  also  money  lent 
for  the  purpose  of  gaming  cannot  be  recovered  back  (a).  Whether 
a  bond  given  simply  to  secure  a  racing  debt  is  valid  or  not,  ap- 
pears to  be  a  doubtful  point.  In  the  well  known  case  of  Bubb 
r.  Yelverton  [b)  it  was  unnecessary  to  decide  that  question,  be- 
cause, as  Lord  Romilly,  M.R.,  said,  the  bond  was  given  "not  to 
pay  racing  debts,  but  to  avoid  the  consequenees  of  not  having  paid 
them.'"  Though  8  &  9  Vict.  c.  109,  s.  18,  does  not  expressly  men- 
tion or  allude  to  Stock  Exchange  transactions,  it  has  been  decided 
that  agreements  between  buyers  and  sellers  of  shares  and  stocks 
to  pay  or  receive  the  differences  between  their  prices  on  one  day 
and  their  prices  on  another  day  are  gaming  and  wagering  trans- 
actions within  the  meaning  of  the  statute  (c).  But  in  Thackerj*. 
Hardy  the  statute  was  held  not  to  be  a  good  answer  to  the  claim  of 
a  broker,  employed  by  the  defendant  to  speculate  for  him  on  the 
Stock  Exchange,  for  commission  and  an  indemnity,  the  agreement 
Billing, 


(/)  Rosewarne   v.  Billing,   15 

C.  B.,  N.  S.  322,  and  see  Read 
v.  Anderson,  13  Q.  B.  D.  779, 
and  Bridges  v.  Savage,  15  Q.  B. 

D.  363. 

(u)  Lvnch  v.  Godwin. 
(.»■)  1  Ex.    D.   13.     See    also 
Seymour  v.  Bridge,  14  Q.  B.  D. 


4(33,  and  Perry  v.  Barnett,  15  Q. 
B.  D.  388. 

(s)  2  C.  P.  D.  76. 

(a)  McKinnell  v.  Robinson,  3 
M.  &  W.  434. 

(&)  L.  R.  9  Eq.  471. 

(c)  Grizewood  v.  Blane,  11  C. 
B.,  526. 


IMPOSSIBLE    CONTRACTS.  147 

being  that  the  plaintiff  should  himself,  as  principal,  enter  into 
real  contracts  of  purchase  and  sale  with  jobbers  (d). 

The  Betting  Houses  Act,  1€53  (e),  makes  it  unlawful  to  keep  I j,-t  t  i  n <^ 
or  use  any  "house,  office,  room,  or  other  place  "  for  betting  In  houses. 
Shaw  v.  Morley  (/)  it  was  held  that  a  wooden  structure,  an-  Shaw  p. 
roofed,  on  the  Doncaster  racecourse  was  an  "office"  and  a  "place"  *iorlev* 
within  the  meaning  of  the  statute.  So  a  stool  and  lug  umbrella 
kept  up  rain  or  no  rain  is  a  "place"  (g);  and  so  even  is  a  small 
moveable  box  (h). 

The  Betting  Act,  1874  (i)  is  supplementary  to  the  Aci  of  1853, 
and  is  confined  to  such  bets  as  are  mentioned  in  the  earlier  Act. 
For  this  reason  it  was  held  in  Cox  v.  Andrews  (k),  that  it  did  Dot 
apply  to  advertisements  offering  information  for  the  purpose  of 
bets  not  to  be  made  in  any  house,  office,  or  place  kept  for  thai 
purpose. 

Lotteries  are  prohibited  by  10  &  11  Will.  III.,  c.  17,  and  other  Lotteries. 
statutes,  and  declared  to  be  public  nuisances  (/).  By  42  Geo. 
III.,  c.  119,  s.  2,  it  is  made  an  offence  to  keep  any  office  or  place 
to  exercise  any  lottery  not  authorized  by  Parliament.  A  man 
who  erected  a  tent  at  Darlington,  and  sold  packets  of  tea  con- 
taining coupons  for  prizes,  was  held  to  have  broken  this  stat- 
ute (m).  But  Art  Union  lotteries,  constituted  as  provided  by  9 
&  10  Vict,  c.  48,  are  allowable. 

The  Vagrant  Act  Amendment  Act,  1873  (?t),  imposes  penalties  Gaming  in 
on  persons  gaming,  &c,  in  public  places.     A  railway  carriage  public  places 
while  travelling  on  its  journey  is  "an  opeu  and  public  place  to 
which  the  public  have  or  are  permitted  to  have  access"  within 
the  Act  (o). 


Impossible  Contracts. 

TAYLOR  v.  CALDWELL. 
[3  B.  &S.  826  (1863).] 

In  1861  Mr.  Caldwell  agreed  to  let  Mr.  Tayler  have 
the  Surrey  Gardens  and  Music  Hall  at  Newington  for 
four  specified  summer  nights,  on  which  Mr.  Taylor  pro- 

(d)  4  Q.  B.  D.  685.  (i)  37  Vict.  c.  15. 

(e)  16  &  17  Vict.  c.   119,  and         (/.)  12  Q.  B.  D.  126. 

see  37  Vict,  c.  15,  and  36  &  37  (/)  See  Allport  r.   Nutt,  1   C. 

Vict.  c.  38.  B.  974. 

(/)  L.  R.  3  Ex.  137.  (m)  Taylor  v.  Smetten,  11  Q. 

(g)  Bows  v.  Fen  wick,  L.  R.  9  B.  D.  207. 

C.  P.  339,  and  Snow  v.  mil,  14  (n)  3<i  &  :'.7  Vict.  c.   38,  s.  3. 

Q.  B.  D.  588.                 .  (o)  Laugrish  v.  Archer,  10  Q. 

(h)  Gallaway  v.  Maries,  8  Q.  B.  D.  44. 
B.  D.  275. 


[59.] 


148 


IMPOSSIBLE    CONTRACTS. 


Why  did  he 

promise  ab- 
solutely? 

Frost  or  in- 
fectious dis- 
ease. 


Paradine  v. 
Jane. 


Life  becom- 
ing uninsur- 
able 


Jumping 
over  the 
moon. 


posed  to  entertain  the  British  public  with  bands,  ballets, 
aquatic  sports,  fireworks,  and  other  festivities.  Unfor- 
tunately, before  these  summer  nights  arrived,  Mr.  Cald- 
well's premises  were  destroyed  by  an  accidental  fire. 
Mr.  Taylor  had  been  put  to  great  expense  in  preparing 
for  his  entertainment,  and  ho  submitted  that,  as  the 
contract  was  an  absolute  one,  Mr.  Caldwell  must  pay 
damages  for  the  breach.  It  was  held,  however,  that 
the  parties  must  be  taken  to  have  contracted  on  the  basis 
of  the  continued  existence  of  the  premises,  arjd  as  they 
had  been  burnt  down  without  the  fault  of  either  party, 
both  parties  were  excused. 

"  You  shouldn't  promise  what  you  can't  perform"  is  a  remon- 
strance as  just  as  it  is  familiar.  A  man  is  not  obliged  to  enter 
into  an  absolute  contract.  He  may  provide  for  as  many  contin- 
gencies as  he  pleases;  and  if  he  chooses  to  promise  absolutely  when 
it  is  in  his  power  to  promise  conditionally,  he  has  only  himself  to 
blame  if  the  consequences  are  unpleasant.  If,  for  instance,  the 
charterer  of  a  ship  agrees  to  put  a  cargo  on  board  at  a  particular 
port,  he  contracts  absolutely,  and  does  not  protect  himself  against 
the  chance  of  a  frost  [p),  or  the  prevalence  of  an  infectious  dis- 
ease (q),  preventing  the  fulfilment  of  his  undertaking.  So,  a 
tenant  is  not  discharged  from  his  covenant  to  pay  rent,  or  to  re- 
pair, by  the  premises  being  accidentally  destroyed,  or  even  by 
his  being  kept  out  of  possession  by  the  King's  enemies  (r).  In 
August,  1873,  on  the  occasion  of  his  marriage,  a  gentleman  con- 
tracted with  trustees  to  insure  his  life  on  or  before  July  2nd, 
1875.  Before  that  date  arrived,  however,  his  life  became  unin- 
surable, and  he  died  without  having  performed  his  contract.  It 
was  held  that  the  breaking  down  of  his  health,  being  what  all  of 
us  are  liable  to,  was  no  excuse,  and  that  the  trustees  were  enti- 
tled to  rank  as  creditors  (s). 

But  sometimes  the  contract  is  physically  impossible  at  the  time 
of  its  making,  and  both  the  parties  know  it.  Such  a  contract  is  void. 
There  is  no  intention  to  perform  it  on  the  one  side,  no  expectation 
that  it  will  be  performed  on  the  other.     An  undertaking  to  jump 


(/>)  Kearon  v.  Pearson,  7  H. 
&  N.  386,  and  see  Kay  v.  Field, 
47  L.  T.,  N.  S.  423. 

(</)  Barker  v.  Hodgson,  3  M. 
&  S.  267;  see  also  Jones  v.  St. 
John's  College,  L.  R.  6  Q.  B. 
115,  Thorn  v.  London,  1  App. 
Ca.  120,  and  Landorf  v.  Hamil- 
ton (the  rat  case),  1G  Q.   B.   D. 


629. 

(r)  Paradine  v.  Jane,  Aleyn. 
26,  and  see  Manchester  Bonded 
Warehouse  Co.  v.  Carr,  5  C.  P. 
D.  507,  and  Marshall  v.  Scho- 
field,  47  L.  T.,  N.  S.  406. 

(s)  Arthur  v.  Wynne,  14  Ch. 
D.  603,  and  see  Gibbons  v. 
Chambers,  1  C.  &  E.  577. 


IMPOSSIBLE    CONTRACTS.  149 

over  the  moon,  or  to  run  from  the  Temple  to  Scarborough  and 
back  in  five  minutes,  would  probably  be  held  void  for  impossi- 
bility.    If,  however,  the  thing  contracted  for,  however  unlikely 

that  any  one  should  accomplish  it,  is  just  conceivably  possible, 
the  contract  may  be  good;  e.g.,  if  a  man  agrees  to  make  a  Hying 
machine  that  will  get  across  the  Atlantic  in  two  hours  (t). 

A  man,  moreover,  may  warrant  the  acts  of  third  persons,  or 
even  a  natural  event  possible  in  itself.  Thus,  it  has  been  said 
that  a  covenant  that  it  shall  rain  to-morrow  might  be  good  («). 

Sometimes  the  contract  is  impossible  at  the  time  of  its  mak-  Ignorance  of 
ing,  but  the  parties  do  not  know  it.     For  example,  there  may  be  what  lias 
bargaining  going  on  about  a  cargo  supposed  to  be  on  the  voyage,  happened, 
but  which,  as  it  happens,  has  been  already  sold  by  reason  of  sea 
damage.     Such  a  contract  is  void,  being  subject  to  the  implied 
condition  that  the  cargo,  as  such,  is  still  in  existence  (.r).     So. 
the  sale  of  a  life  annuity  is  impliedly  conditional  on  the  annui- 
tant being  alive  at  the  time  of  the  sale  (y). 

When  the  fulfilment  of  a  contract  for  personal  services  is  pre-  Too  ill  to 
vented  by  the  act  of  God,  the  promisor  is  excused,  unless  it  clear-  t'ome. 
ly  appears  from  the  terms  of  the  contract  that  he  was  to  be  liable 
whatever  happened  {z).  A  lecturer,  for  instance,  who  did  not 
turn  up  as  expected,  would  have  a  sufficient  legal  excuse  in  a 
sudden  illness.  So  of  an  author  who  had  agreed  to  write  a  book. 
But  he  ought  to  give  the  earliest  notice  that  is  reasonably  practi- 
cable. In  such  a  case  as  this,  the  privilege  of  rescinding  the 
contract  is  not  merely  that  of  the  invalided  performer,  but  also 
that  of  the  party  engaging  him  who  may  decline  to  have  a  man 
who  is  too  ill  to  do  his  work  properly  («).  So,  too,  if  a  master 
dies  during  the  service,  the  servant  has  no  remedy  against  his 
executors  (b). 

The  intervention  of  an  Act  of  Parliament  will  also  excuse  the  Station  not 
performance  of  a  promise,  because  parties  must  be  considered  as  wanted, 
contracting  with  reference  to  the  existing  state  of  the  law,  and 
lex  non  cogit  ael  impossibilia.  In  the  leading  case  on  this  point  a 
lessor  had  convenanted  that  no  buildings  should  be  erected  in  a 
paddock  fronting  the  demised  premises,  somewhere  in  Camber- 
well,  and  then  a  railway,  with  its  compulsory  powers,  came 
along  and  stuck  a  station  there  (c). 

As  already  stated,  Taylor  v.  Caldwell  was  decided  on  the  ground 

(0  Clifford  v.  Watts,  L.  R.  5  son,  L.  R.  6  Ex.  269. 
C.  P.  588.  (a)  Poussard   v.  Spiers,  1  Q. 

(u)  Per  Maule,   J.,   in  Can-  B.  D.  410. 
ham  v.  Barry,  15  C.  D.  619.  (b)  Farrow  v.  Wilson,  L.   R. 

(.r)  Couturier  v.  Hastie,  5  H.  4  C.  P.  744. 
L.  C.  673.  (c)  Baily  v.  De  Crespigny,  L. 

(y)  Strickland  v.  Turner,  7  E.  4  Q.  B.  180;  and  see  Brew- 
Ex.  208.  ster   v.    Kitchell,    1   Salk.  198, 

(z)  Boast  v.  Firth,  L.  R.  4  C.  and  Mayor  of  Berwick  v.   Os- 

P.   1,    and   Robinson   v.    Davi-  wald,  3  E.  &  B.  665. 


150  IMPOSSIBLE   CONTRACTS. 

that  when  the  performance  depends  on  the  continued  existence 
of  the  thing,  a  condition  is  implied  that  the  impossibility  aris- 
ing from  its  accidental  destruction  shall  excuse  performance.  It 
has  been  followed  in  two  important  cases  with  which  the  student 
Appleby  v.  should  make  himself  acquainted.  In  Appleby  v.  Meyers  (</)  the 
Meyers.  plaintiff  had  agreed  with  the  defendant  to  put  up  some  machin- 

ery on  his  premises  to  be  paid  for  when  finished.     In  the  course 
of  the  work,    premises,    machinery,   and   everything   were   de- 
stroyed by  fire.     It  was  held  that  both  parties  were   excused 
from  further  performance,  and  that  no  liability  accrued  on  either 
Potatoes  from  8ide.     In    Howell   v.    Coupland  (e)  a  Lincolnshire    farmer   had 
a  particular     agreed  to  sell  to  a  potato  merchant  200  tons  of  potatoes  grown  on 
bit  ot  land.      a  particular  piece  of  land  belonging  to  the  former.     Before  the 
time  for  performance  arrived,  the   farmer's   potatoes   were   at- 
tacked by  the  potato  blight,  and  he  was  only  able  to  deliver 
about  80  tons.     It  was  held  that  an  action  to  recover  damages 
for  the  non-delivery  of  the  residue  could  not  be  maintained. 


Negotiable  Instruments  are  Transferable  like 
Cash  on  Delivery. 

[68.]  MILLER  v.  RACE. 

[1  BUEE,  452  (1791).] 

One  Decernoer  night,  about  the  middle  of  the  last 
century,  the  mail  from  London  to  the  West  was  at- 
tacked by  highwaymen.  Amongst  other  things  taken 
was  a  banknote  for  £21  10s.,  which  a  Mr.  Finney  of 
London  was  sending  down  by  the  general  post  to  a 
client  in  Oxfordshire.  The  next  day  the  news  of  the 
disaster  reached  the  ears  of  Mr.  Finney,  who  rushed 
off  immediately  to  the  bank  and  stopped  payment  of 
the  note. 

A  few  days  afterwards,  the  plaintiff,  who  had  come 
by  the  note  quite  honestly  and  had  given  value  for  it, 
presented  it  at  the  bank;  but  Mr.  Eace,  one  of  the 
bank  clerks,  not  only  refused  to  cash  it,  but  even  to 

(d)  L.  E.  2  C.  P.  651.  (e)  1  Q.  B.  D.  258. 


NEGOTIABLE    INSTRUMENTS.  151 

hand  it  back.  Miller  therefore  sued  him,  and  suc- 
ceeded in  making  hiui  cash  it. 

The  leading  cases  engrafts  on  the  well  known  rule  that  no  one  JjTemo  dot 

can  acquire  a  title  to  a  chattel  personal  from  a  man  who  has  himself  QW>d  non 

no  title  to  it  an  exception  in  favour  of  all  negotiable  instruments.   '"  "  ' 

Whenever  a  man  receives  one  of  these  instruments  bond  fide,  and  Exception  in 

having  given  valuable  consideration  for  it,  he  is  not  to  lose  his  favour  of 

money  because  the  document's  history  is  of  an  unsatisfactory  '""?'  Ia 
,  T1.  ,  ,  .        .  „  .  instruments. 

Character.      It,  however,  he   receives  it  mala  fide,  it    is  different.   ... 

'  .  •       ,      •  '  nless  taken 

A  good-for-nothing  cleric  received  some  notes  and  money  for  his  w„/„  //,/,■ 

master,  and  then  went  and  laid  them  out  with  the  defendant  in 
illegal  insurances  of  lottery  tickets.  The  defendant  knew  that 
lie  was  doing  wrong  ;  so  the  clerk's  master  was  allowed,  on  prov- 
ing their  identity,  to  recover  them  (/).  But  mala  fides,  in  such 
cases,  must  always  be  distinctly  proved  ;  it  will  not  be  sufficient 
to  show  that- the  defendant  was  guilty  of  an  astonishing  amount 
of  carelessness  in  taking  the  instrument,  if  he  did  not  take  it 
dishonestly  (g). 

A  negotiable  instrument  has  been  defined  as  an  instrument  which  Various 
upon  delivery  transfers  the  legal  right  to  the  property  secured  ]>;/  it  to  kinds  of  ne- 

the  person  to  whom  it  is  delivered.     The  most  familiar  negotiable  SotiaDle  in" 

,  ...         ,  .,.       _  °  st rumen ts. 

instruments  are  bills  and  notes  (/<).  To  these  may  be  added  gov- 
ernment bonds,  dock  warrants,  King  of  Prussia  bonds,  and  all 
instruments  to  which  by  the  law  merchant  or  by  statute  the 
above  incident  attaches.  It  is  doubtful  whether  in  England  any 
instrument  can  become  negotiable  except  by  the  law  merchant  How  negoti- 

or  by  statute.     In  1872  a  company  called  the  Credit  Foncier  of  able  ms,.ru- 

;  r     j  men!  arises. 

Englaud  issued  a  debenture  for  £100  payable  to  bearer.     By  and  Crouch  and 

by,  and  after  a  robbery,  this  apparently  negotiable  instrument  his  worthless 

got  into  the  hands  of  a  Mr.  Crouch,  who  sued  on  it;  but  it  was  debenture. 

held  that  the  company  were  not  bound  to  pay  it,  as  they  had  no 

power  to  issue  a  negotiable  instrument  of  a  novel  kind  (i).     The 

scrip,  however,  of  a  foreign  government  issued  by  it  on  negotiat-  gCrip  of 

'ing  a  loan,  which  is  by  the  custom  of  all  the  stock  markets  in  foreign 

Europe  negotiable,  is  so  regarded  by  English  law  (A)  ;  and  soare  government. 

scrip  certificates  of  a  banking  company  which  have  for  many  years  '  ' ' ''' ( f1  ' a" 

i  ^        i     j  .  .  cates  of 

been  treated  as  negotiable  instruments  by  bankers,  discounters,  bankingcom- 
anil  people  on  the  Stock  Exchange  (l).  pans. 

An  instrument  may  be  negotiable,  though  it  has  not  been  is- 
sued as  such  by  the  party  who  made  it ;  e.g..  where  the  acceptor 
tore  up  a  bill  with  the  intention  of  cancelling  it,  and  the  drawer 


(/)  Clark  v.  Shee,  Cowp.  199.  of  England,  L.   R.  8  Q.  B.  374. 

[g)  Goodman  v.  Harvey,  4  Ad.  (A-)    Goodwin    v.    Robarta,    1 

&  &  170.  A  pp.  Ca.  470. 

(/«)  As  to  these  see  the  Bills  (/)  Rumball  v.  Metr.  Bank,  2 

of  Exchange  Act,  1882.  Q.  B.  D.  194.     • 

(z)  Crouch  v.  Credit  Foncier 


152 


NEGOTIABLE    INSTRUMENTS. 


Resticting 
negotiability 

Sale  in  mar- 
ket overt. 


Effect  of 
prosecuting 
thief  to  con- 
viction. 


surreptitiously  pasted  the  pieces  together,  and  endorsed  it 
away  («i).  It  is  otherwise,  however,  if  the  instrument  be  issued 
iti complete  (n). 

Negotiability  may  sometimes  be  restricted  ;  e.g.,  a  cheque  may 
be  crossed  (o),  or  a  bill  specially  endorsed  (p). 

Another  exception  to  the  rule  that  no  one  can  acquire  a  title 
to  a  chattel  personal  from  a  person  who  has  himSelf  no  title  to  it 
exists  in  the  case  of  a  sale  in  market  overt.  A  purchaser  in  mar- 
ket overt  may  keep  stolen  property  (not being  ahorse),  and  snap 
his  fingers  at  the  true  owner.  If,  however,  the  owner  prosecutes 
the  thief  and  gets  him  convicted,  the  tables  are  turned,  an  Act 
of  Parliament  (q)  expressly  providing  that  in  that  case  the  owner 
shall  have  his  goods  restored  to  him  ;  and,  indeed  he  may  then 
maintain  trover  for  them  without  waiting  for  any  writ  of  restitu- 
tion (r).  But  the  construction  placed  on  this  Act  is  that  it  ap- 
plies only  to  cases  in  which  possession  has  been  obtained  without  the 
property  passing  (s).  Moreover,  no  action  lies  against  an  inno- 
cent purchaser  of  stolen  goods  in  market  overt  who  disposes  of 
the  goods  before  conviction  of  the  thief  (t).  The  innocent  pur- 
chaser, it  has  been  recently  held,  cannot,  in  answer  to  a  claim 
for  the  goods  by  the  owner  after  the  thief  has  been  duly  con- 
victed, counterclaim  for  the  cost  of  their  keep  while  in  his  pos- 
session (it).  But  by  30  &  31  Vict.  c.  35,  s.  9,  the  court  which 
tries  the  thief  may,  on  his  conviction,  direct  that  money  found 
on  him  shall  be  paid  to  the  innocent  buyer  in  compensation  for 
his  having  to  give  up  the  property. 

In  the  country  the  privilege  of  market  overt  applies  only  to 
those  particular  days  and  places  which  may  happen  to  be  speci- 
fied by  charter  or  prescription.  But  in  London  (i.  e.,  the  city)  it 
applies  to  every  week-day  (between  sunrise  and  sunset)  and 
every  shop.  The  sale,  however,  must  be  of  such  articles  as  are 
usually  dealt  in  at  the  shop.  Everything,  too,  must,  be  open 
and  above  board  ;  any  attempt  at  concealment  (e.g.,  by  the  shut- 
ters being  up,  or  by  the  sale  taking  place  at  the  back  of  the  shop) 
vitiating  the  privilege.  Nor  is  the  purchaser  protected  if  it  is 
Crown  property  that  he  buys,  or  if  he  is  aware  of  the  defect  of 
title  ;  or,  in  short,  if  he  is  guilty  of  any  fraud  in  the  transaction. 
It  is  probable  that  the  privilege  of  market  overt  covers  not  only 


(m)  Ingham  v.  Primrose,  7  C. 
B.,  N.  S.  82. 

(»)  Baxendale  v.  Bennett,  ) 
Q.  B.  D.  525. 

(o)  39  &  40  Vict.  c.  81. 

(/))  Sigournev  v.  Llovd,  8  B. 
&  C.  622. 

(q)  24  &  25  Vict.  c.  96.  s.  100. 

(r)  Scattergood  v.  Sylvester, 
15  Q.  B.  506,  and  R.  r.London, 
L.  E.  4  Q.  B.  371.    See  also  De- 


laney  v.  Wallis,  15  Cox  525. 

(.si  Lindsay  p.  Cundy,  3  App. 
C'a.  459  :  Movce  p.  Xewington, 
4  Q.  B.  D.  32  ;  and  see  Babcock 
V.  Lawson,  5  Q.  B.  D.  394,  and 
Chichester  v.  Hill,  48  L.  T., 
N.  S.  364. 

(t)  Horwood  v.  Smith,  2  T. 
R.  750. 

(u)  Walker  v.  Matthews,  8 
Q.  B.  D.  109. 


NEGOTIABLE    INSTRUMENTS.  153 

the  sale  from  shopkeeper  to  stranger,  but  also  (at  all  events  when 
such  sales  are  customary)  that  from  stranger  to  shopkeeper  (x). 

The  property  in  a  horse,  even  though  sold  in  market  overt,  II.. i 
does  not  puss  to  the  buyer,  unless  certain  ibrmalties  prescribed  by 
some  ancient  statutes  (y)  have  been  complied, with.  To  entitle 
the  buyer  to  anything  approaching  security,  the  horse  must  have 
been  exposed  in  the  open  market  for  a  whole  hour,  between  10  a. 
m.  and  sunset.  Then  buyer,  seller  and  horse  must  all  go  together 
before  the  book-keeper  of  the  market,  who  will  enter  in  his  note- 
book every 'kind  of  particular  about  all  three.  But  even  when 
the  buyer  has  undergone  this  ordeal,  and  paid  the  money,  he  can 
hardly  call  himself  the  owner  of  the  horse;  because,  any  time 
within  six  months  of  its  being  stolen,  the  owner  of  a  horse  may 
put  in  his  claim  before  a  magistrate  in  the  district  where  it  is 
found,  and  if  he  can  within  forty  days  get  two  witnesses  to  come 
and  swear  it  is  his,  may  have  it  back  again  on  tending  to  the  per- 
son in  possession  of  it  the  sum  he  paid  in  markert  overt. 

It  is  to  be  observed   that  goods  stolen  and  sold  out  of  market  Retakine 
overt  may  be  retaken  wherever  found,  though  no  step  has  been  stolen  prop- 
taken,  or  is  intended  to  be  taken,  to  prosecute  the  thief  (z).     So  city, 
also  if  goods  stolen  are  pawned,  the  owner  may  maintain  trover 
against  the  pawnbroker  (a). 

It  is  provided  by  the  3Gth  section  of  the  Bills  of  Exchange  Act,  Negotiation 
1882  (6),  that—  of  overdue  or 

"(1.)  Where  a  bill  is  negotiable  in  its  origin  it  continues  to  be  , -ii 
negotiable  until  it  has  been  (a.)  restrictively  indorsed  or  (b.)  dis- 
charged by  payment  or  otherwise. 

(2.)  Where  an  overdue  bill  is  negotiated,  it  can  only  be  nego- 
tiated subject  to  any  defect  of  title  affecting  it  at  its  maturity, 
and  thenceforward  no  person  who  takes  it  can  acquire  or  give  a 
better  title  than  that  which  the  person  from  whom  he  took  it  had- 

(3.)  A  bill  payable  on  demand  is  deemed  to  be  overdue  within 
the  meaning  and  for  the  purposes,  of  this  section,  when  it  ap- 
pears on  the  face  of  it  to  have  been  in  circulation  for  an  unreason- 
able length  of  time.     What  is  an  unreasonable  length  of  time  for        « 
this  purpose  is  a  question  of  fact. 

(4.)  Except  where  an  endorsement  bears  date  after  the  ma- 
turity of  the  bill,  every  negotiation  is  prima  facte  deemed  to  have 
been  effected  before  the  bill  was  overdue. 

(5.)  Where  a  bill  which  is  not  overdue  has  been  dishonoured 

(.r)  See  Taylor  v.  Chambers,  (z)  Peer  v.  Humphrey,  2  Ad. 

Cro.  Jac.;  Lyons  v.  De  Pass,  11  &  E.  495. 

A.  &  E.  326;  and  Crane  v.  Lond.  (a)  Packer  v.  Gillies,  2  Camp. 

Dock  Co.,  5  B.  &  S.  313.  336;  and  see  35  &  36  Vict.  c.  93 

(y)  2  &  3  P.  &  M.   c.   7,   and  (Pawnbrokers  Act,  1872),  s.  36. 

31  Eliz.  c.  12.  (b)  45  &  46  Vict.  c.  61. 


154  NEGOTIABLE    INSTRUMENTS. 

any  person  who  takes  it  with  notice  of  the  dishonour  takes  it 
subject  to  any  defect  of  title  attaching  thereto  at  the  time  of  dis- 
honour, but  nothing  in  this  sub-section  shall  affect  the  rights  of 
a  holder  in  due  course." 


Notice   of  Dishonour. 


[62.]  BICKERDIKE  v.  BOLLMAN. 

[  1   T.   R.   405  (1786).] 

The  effect  of  this  case  (the  narrative  of  which  is  too 
complicated  to  be  worth  giving)  is  this: — Spendfast be- 
ing hard  rip  for  money,  and  knowing  the  weak  good- 
nature of  his  friend  Lighthead,  asks  him  to  accept  a 
bill  of  exchange  for  him,  assuring  him  that  he  will 
never  be  called  on  to  pay  it,  and  that  it  is  really  only  a 
formality.  Lighthead  consents,  and  though  he  gets  no 
consideration  whatever  for  it,  accepts  a  bill  drawn  on 
him  by  Spendfast.  The  bill  finally  gets  into  the  hands 
of  Thriftman  as  holder,  and  he  presents  it  to  Light- 
head  for  payment.  Lighthead,  of  course,  dishonours 
the  bill,  and  uses  strong  language.  Such  being  the  state 
of  the  parties,  Bickerdike  v.  Bollman  decides  that  Thrift- 
man,  the_  holder,  can  sue  Spendfast,  the  drawer,  with- 
out having  previously  given  him  notice  that  Lighthead, 
the  acceptor,  has  dishonoured  the  bill,  the  reason  being 
that  the  drawer  never  had  any  effects  in  the  hands  of 
the  drawee,  and  therefore  could  not  lose  anything  by 
notice  not  being  given  him. 

The  necessity  of  cases  on  this  subject  has  been  happily  super- 
seded by  codification,  the  47th,  48th,  49th  and  50th  sections  of 
the  Bills  of  Exchange  Act,  1882  (c),  being  as  follows: — 
Dishonour  by      "47. — (1.)  A  bill  is  dishonoured  by  non-payment  (a.)  when  it 

non-pay-  is  duly  presented  for  payment  and  payment  is  refused  or  cannot 

ment. 

(c)  45  &46  Vict,  c.  61. 


NOTICE    OP    DISHONOUR.  155 

be  obtained,  or  (b.)  when  presentment  is  excused  and  the  bill  is 
overdue  and  unpaid. 

(2.)  Subject  to  the  provisions  of  1  his  Act,  when  a  bill  is  dis- 
honoured by  non-payment,  an  immediate  right  of  recourse  againsl 
the  drawer  and  indorsers  accrues  to  the  holder. 

48.  Subject  to  the  provisions  of  this  Act,  when  a  hill  lias  been  Notice  of 
dishonoured  by  non-acceptance  or  by  non-payment,  notice  of  dis-  dishonour 

honour  must  be  given  to  the  drawer  and  each  indorser,  and  any  . 

°  •    non-notice, 

drawer   or  indorser  to  whom   such  notice  is  not  given    is  dis- 
charged ;  Provided  that — 

(1.)  Where  a  bill  is  dishonoured  by  non-acceptance,  and  notice 
of  dishonour  is  not  given,  the  rights  of  a  holder  in  due  course  sub- 
sequent to  the  omission  shall  not  be  prejudiced  by  the  omission. 

(2.)  Where  a  bill  is  dishonoured  by  non-acceptance  and  due 
notice  of  dishonour  is  given,  it  shall  not  be  necessary  to  give  no- 
tice of  a  subsequent  dishonour  by  non-payment  unless  the  bill 
shall  in  the  meantime  have  been  accepted. 

49.  Notice  of  dishonour  in  order  to  be  valid  and  effectual  must  Rules  as  to 

be  given  in  accordance  with  the  following  rules: —  notice  oi 

dishonour. 
(1.)  The  notice  must  be  given  by  or  on  behalf  of  the  holder,  or 

by  or  on  behalf  of  an  indorser  Avho,  at  the  time  of  giving  it,  is 

himself  liable  on  the  bill. 

(2.)  Notice  of  dishonour  may  be  given  by  an  agent  either  in 
his  own  name,  or  in  the  name  of  any  party  entitled  to  give  no- 
tice, whether  that  party  be  his  principal  or  not. 

(3.)  Where  the  notice  is  given  by  or  on  behalf  of  the  holder, 
it  enures  for  the  benefit  of  all  subsequent  holders  and  all  prior 
indorsers  wTho  have  a  right  of  recourse  against  the  party  to  whom 
it  is  given. 

(4.)  Where  notice  is  given  by  or  on  behalf  of  an  indorser  en- 
titled to  give  notice  as  hereinbefore  provided,  it  enures  for  the 
benefit  of  the  holder  and  all  indorsers  subsequent  to  the  party  to 
whom  notice  is  given. 

(5.)  The  notice  may  be  given  in  writing  or  by  personal  com- 
munication, and  may  be  given  in  any  terms  which  sufficiently 
identify  the  bill,  and  intimate  that  the  bill  has  been  dishonoured 
by  non-acceptance  or  non-payment. 

(6.)  The  return  of  a  dishonoured  bill  to  the  drawer  or  an  in- 
dorser is,  in  point  of  form,  deemed  a  sufficient  notice  of  dishonour. 

(7.)  A  written  notice  need  not  be  signed,  and  an  insufficient 
written  notice  may  be  supplemented  and  validated  by  verbal 
communication.  A  misdescription  of  the  bill  shall  not  vitiate 
notice  unless  the  party  to  whom  the  notice  is  given  is  in  fact 
misled  thereby. 

(8.)  Where  notice  of  dishonour  is  required  to  be  given  to  any 


156  NOTICE    OF   DISHONOUR. 

person,  it  may  bo  given  either  to  the  party  himself,  or  to  his 
agent  in  that  behalf. 

(9.)  Where  the  drawer  or  indorser  is  dead,  and  the  party  giv- 
ing notice  knows  it,  the  notice  must  be  given  to  a  personal  repre- 
sentative if  such  there  he,  and  with  the  exercise  of  reasonable 
diligence  he  can  be  found. 

(10.)  "Where  the  drawer  or  indorser  is  bankrupt,  notice  maybe 
given  either  to  the  party  himself  or  to  the  trustee. 

(11.)  "Where  there  are  two  or  more  drawers  or  indorsers  -who 
are  not  partners  notice  must  be  given  To  each  of  them,  unless 
one  of  them  has  authority  to  receive  such  notice  for  the  others. 

(12.)  The  notice  may  be  given  as  soon  as  the  bill  is  dishonoured 
and  must  be  given  within  a  reasonable  time  thereafter. 

In  the  absence  of  special  circumstance  notice  is  not  deemed  to 
have  been  given  within  a  reasonable  time,  unless — 

(fl.)  Where  the  person  giving  and  the  person  to  receive  notice 
reside  in  the  same  place,  the  notice  is  given  or  sent  off  in  time  to 
reach  the  latter  on  the  day  after  the  dishonour  of  the  bill. 

(/>.)  Where  the  person  giving  and  the  person  to  receive  notice 
reside  in  different  places,  the  notice  is  sent  off  on  the  day  after 
the  dishonour  of  the  bill,  if  there  be  a  post  at  a  convenient  hour 
on  that  day,  and  if  there  be  no  such  post  on  that  day  then  by  the 
next  post  thereafter. 

(13.)  Where  a  bill  when  dishonoured  is  in  the  hands  of  an 
agent,  he  may  either  himself  give  notice  to  the  parties  liable  on 
the  bill,  or  he  may  give  notice  to  his  principal.  If  he  give  no- 
tice to  his  principal,  he  must  do  so  within  the  same  time  as  if  he 
were  the  holder,  and  the  principal  upon  receipt  of  such  notice 
has  himself  the  same  time  for  giving  notice  as  if  the  agent  had 
been  an  independent  holder. 

(14.)  Where  a  party  to  a  bill  receives  due  notice  of  dishonour, 
he  has  after  the  receipt  of  such  notice  the  same  period  of  time  for 
»  giving  notice  to  antecedent  parties  that  the  holder  has  after  the 
dishonour. 

(15. )  Where  a  notice  of  dishonour  is  duly  addressed  and  posted, 
the  sender  is  deemed  to  have  given  due  notice  of  dishonour,  not- 
withstanding any  miscarriage  by  the  post  office. 
Excuses  for         50. — (1.)  Delay  in  giving  notice  of  dishonour  is  excused  where 
non-notice       the  delay  is  caused  by  circumstances  beyond  the  control  of  the 
and  delay.       party  giving  notice,  and  not   imputable   to  his  default,  miscon- 
duct, or  negligence.     When  the  cause  of  delay  ceases  to  operate 
the  notice  must  be  given  with  reasonable  diligence. 

(2.)  Notice  of  dishonour  is  dispensed  with — 

(a.)  When,  after  the  exercise  cf  reasonable  diligence,  notice  as 
required  by  this  Act  cannot  be  given  to  or  does  not  reach  the 
drawer  or  indorser  sought  to  be  charged: 


MATERIAL    ALTERATION.  157 

(b.)  By  waiver  express  or  implied.  Notice  of  dishonour  may 
be  waived  before  the  time  of  giving  notice  has  arrived,  or  after 
the  omission  to  give  due  notice : 

(c.)  As  regards  the  drawer  in  the  following  cases,  namely,  (1) 
where  drawer  and  drawee  are  the  same  person,  (2)  where  the 
drawee  is  a  fictitious  person  or  a  person  not  having  capacity  to 
contract,  (3)  where  the  drawer  is  the  person  to  whom  the  bill  is 
presented  for  payment,  (4)  where  the  drawee  or  acceptor  is  as  be- 
tween himself  and  the  drawer  under  no  obligation  to  accept  or 
pay  the  bill,  (5)  where  the  drawer  has  countermanded  payment. 

(d. )  As  regards  the  indorser  in  the  following  cases,  namely,  (1) 
where  the  drawee  is  a  fictitious  person  or  a  person  not  having 
capacity  to  contract  and  the  endorser  was  aware  of  the  fact  at  the 
time  he  indorsed  the  bill,  (2)  where  the  indorser  is  the  person  to 
whom  the  bill  is  presented  for  payment,  (3)  where  the  bill  was 
accepted  or  made  for  his  accommodation." 


Material  Alteration    Vitiates   Written  Instru- 
ment. 

MASTER  v.  MILLER.  [62.] 

[2  H.  Bl.  141  (1791).] 

On  March  26th,  1788,  Peel  and  Co.,  of  Manchester, 
drew  a  bill  for  £1000  on  Miller,  payable  three  months 
after  date  to  Wilkinson  and  Cooke.  This  bill  they  de- 
livered to  Wilkinson  and  Cooke,  and  Miller  afterwards 
accepted  it.  Wilkinson  and  Cooke  then  indorsed  it  for 
value  to  the  plaintiff.  But  before  doing  so,  they  quietly 
made  one  or  two  little  alterations  with  the  object  of 
improving  the  document.  March  26th  they  changed 
into  March  20th;  and  they  stuck  June  23rd  at  the  top 
to  indicate  that  the  bill  would  become  due  on  that  day. 
These  alterations,  being  to  accelerate  payment  and  un- 
authorised, were  held  to  vitiate  the  instrument. 

12   COMMON   LAW. 


15S 


MATERIAL    ALTERATION. 


[63.] 


Effect  of 
alteration. 


Pigot's  case. 


Material 
alteration 
vitiates. 
Suffell  v. 
Bank  of 
England. 


Warrington 
v.  Early. 


ALDOUS  r.   CORNWELL. 
[L.  K.  3  Q.  B.  543  (1868).] 

In  November,  1865,  Mr.  Cornwell  gave  his  promis- 
sory-note to  this  effect — "  I  promise  to  pay  Mr.  Edward 
Aldous  the  sum  of  £125."  By  and  by  Mr.  Aldous 
asked  Mr.  Cornwell  to  pay  the  £125.  Mr.  Cornwell 
was  about  to  do  so  when  he  noticed  that  two  words  had 
been  added  to  the  note  he  had  made,  so  that  it  now  ran 
"On  demand  I  promise  to  pay,  &c."  Mr.  Cornwell  on 
this  refused  to  pay,  pleading  that  he  "  did  not  make  the 
note  as  alleged."  The  result  of  an  action,  however, 
was  that  he  was  compelled  to  pay  as  the  alteration  was 
an  immaterial  one,  all  notes  which  express  no  time  for 
payment  being  payable  "on  demand." 

The  law  looks  with  great  disfavour  on  the  alteration  of  writ- 
ten instruments.  Even  when  the  alteration  is  made  with  the 
consent  of  both  parties  (unless  it  he  merely  to  correct  a  mistake 
and  render  the  document  what  it  has  all  along  been  intended  to 
be,)  there  must  be  a  new  stamp  just  as  if  it  were  a  new  con- 
tract (d). 

One  of  the  earliest,  and  for  a  long  time  the  most  important, 
cases  on  alteration  without  consent  is  PigoVs  ease  (e).  That  case 
referred  only  to  deeds;  but  its  principle  was  afterwards  extended 
to  bills  of  exchange,  guarantees,  bought  and  sold  notes,  charter- 
parties,  and  other  instruments.  But  the  part  of  the  second  reso- 
lution of  Pigot's  case  which  says  that  "  if  the  obligee  himself  alters 
the  deed,  although  it  is  in  tvords  not  material,  yet  the  deed  is  void,"  is 
not  now  law. 

A  material  alteration,  no  matter  by  whom,  vitiates  a  written 
instrument.  Thus  in  the  recent  case  of  Suffell  v.  Bank  of  Eng- 
land (/)  it  was  held  that  the  alteration  of  a  Bank  of  England  note 
by  erasing  the  number  upon  it  and  substituting  another  was  a 
material  alteration  which  avoided  the  instrument,  so  that  a  bond 
fide  holder  for  value  could  not  afterwards  maintain  an  action  on  it. 
In  "Warrington  v.  Early  (g)  it  appeared  that  three  persons  had  made 
their  joint  and  several  promissory  note  with  lawful  interest.''1 
The  holder  persuaded  two  of  them,  in  the  absence  of  the  third, 


(d)  Reed  v.  Deere,  7  B.  &  C. 
26*1,  and  Bowman  r.  Nichol,  5 
T.  R.  537. 

(e)  11  Co.  26. 


(/)  51  L.  J.  Q 
see  Leeds  Bank  r. 
Q.  B.  D.  84. 

(g)  2  E.  &  B.  763 


B.  401,    and 
Walker,  11 


MATERIAL    ALTERATION.  159 

to  add  in  the  corner,  by  way  of  explanation,   "interest  at  6  per 
cent."     It  was  held  that  he  could  not  recover  against  the  third 
party,  as  the  note  had  been  materially  altered.     In   Vance  v.  Vance  v. 
Lowther  (h)  a  dishonest  clerk  had  absconded  with  a  cheque  drawn  Lowther. 
in  his  master's  favour.     After  altering  the  date  from  .March  -2nd  < 

to  March  26th,  he  passed  it  to  the  plaintiff  for  value.  It  was 
held  that  the  alteration  was  material,  and  invalidated  the  cheque, 
so  that  the  plaintiff,  in  spite  of  having  acted  prudently  and  up- 
rightly, could  not  successfully  sue  the  drawer.  In  this  ease  it 
was  also  held  that  materiality  is  a  question  of  law,  and  that,  in  de- 
ciding it,  reference  is  to  be  had  to  the  contract  alone,  and  not  to 
the  surrounding  circumstances.  But  alterations  by  accident  (e.g.,  Mistake  or 
by  a  mischievous  little  boy  tearing  off  a  seal,  or  by  rats  eating  it)  accident. 
or  mistake  do  not  affect  the  liability  (;'). 

The  instrument  may  be  given  in  evidence  for  a  collateral  pur-  Collateral 
pose,  notwithstanding  a  material  alteration.  A  landlord  once  purpose, 
brought  an  action  against  a  tenant  for  not  cultivating  according 
to  the  terms  of  the  written  agreement  between  them.  The  writ- 
ten agreement  when  produced  was  found  to  be  stained  with  an 
erasure  in  the  habendum,  the  term  of  years  having  been  altered 
from  seven  to  fourteen.  As  a  matter  of  fact,  the  defendant  was 
a  yearly  tenant  under  a  parol  agreement  which  incorporated  only 
so  much  of  the  written  instrument  as  was  applicable  to  a  yearly 
holding,  so  that  it  did  not  matter  whether  the  written  agreement 
said  14  or  140  years.  For  this  reason  the  instrument  was  admit- 
ted in  evidence  to  prove  the  terms  on  which  the  tenant  held  the 
land  (k). 

With  regard  to  the  alteration  of  bills  of  exchange,  it  is  to  be  j^ci  0f  1H82. 
observed  that  the  law  has  recently  been  codified.     The  G3rd  and 
G4th  sections  of  the  Bills  of  Exchange  Act,  1882  (<),  are  as  fol- 
lows:— 

"63.— (1.)  Where  a  bill  is  intentionally  cancelled  by  the  holder  Cancellation 
or  his  agent,  and  the  cancellation  is  apparent  thereon,  the  bill  is 
discharged. 

(2.)  In  like  manner  any  party  liable  on  a  bill  may  be  dis- 
charged by  the  intentional  cancellation  of  his  signature  by  the 
holder  or  his  agent.  In  such  case  any  indorser  who  would  have 
had  a  right  of  recourse  against  the  party  whose  signature  is  can- 
celled is  also  discharged. 

(3.)  A  cancellation  made  unintentionally,  or  under  a  mistake, 
or  without  the  authority  of  the  holder  is  inoperative;  but  where 
a  bill  or  any  signature  thereon  appears  to  have  been  cancelled  the 
burden  of  proof  lies  on  the  party  who  alleges  that  the  cancella- 
tion was  made  unintentionally,  or  under  a  mistake,  or  without 
authority. 

(h)  1  Ex.   Div.  176,  and   see  402;  but  see  Davidson  v.  Cooper, 

Harris  v.  Tenpany,  1  C.  &.  E.  13  M.  &  W.  343. 

65,  and  Pattinson  v.  Luckley,  L.  (k)  Falmouth  v.  Roberts,  9  M. 

R.  10  Ex.  330.  &  W.  46.0. 

(i)  Raper  v.  Birkbeck,  15  East,  (7)  45  &  46  Vict.  c.  61. 
17,  and  Argoll  v  Cheney,  Palm. 


160  MATERIAL    ALTERATION. 

Alteration  of     64. — (1.)  Where  a  bill  or  acceptance  is  materially  altered  with- 
bill.  out  the  assent  of  all  parties  liable  on  the  bill,  the  bill  is  avoided 

except  as  against  a  party  who  has  himself  made,  authorised,  or 
assented  to  the  alteration,  and  subsequent  indorsers. 

Provided  that,  Where  a  bill  has  been  materially  altered,  but 
the  alteration  is  not  apparent,  and  the  bill  is  in  the  hands  of  a 
holder  in  due  course,  such  holder  may  avail  himself  of  the  bill 
as  if  it  had  not  l)een  altered,  and  may  enforce  payment  of  it  ac- 
cording to  its  original  teuour. 

(2.)  In  particular  the  following  alterations  are  material,  namely, 
any  alteration  of  the  date,  the  sum  payable,  the  time  of  payment, 
the  place  of  payment,  and,  where  a  bill  has  been  accepted  gen- 
erally, the  addition  of  a  place  of  payment  without  the  acceptor's 
assent." 


Warranties,  &c. 


[64.]  LOPUS  v.  CHANDELOR, 

[2  Ceoke  2  (1603;.] 

A  jeweller  sold  a  man  a  stone  saying  it  was  a  bezoar, 
when  it  was  not.  It  was  held,  however,  that  he  was  not 
liable  in  contract  because  his  assertion  did  not  amount 
to  a  warranty ;  nor  in  tort  because  he  might  have  be- 
lieved what  he  said. 

The  probabilities  are  that  if  Lopns  had  been  a  litigant  of  to-day 
he  would  have  succeeded  on  both  points: — in  contract,  because 
Mere affirma-  ''every  affirmation  at  the  time  of  the  sale  of  a  personal  chattel  is 
tion  may  be    a  warranty  if  it  appear  to  have  been  intended  as  such,"  and 
warranty.        Chandler's  assertion  that  the  stone  was  a  bezoar  would  no  doubt 
be  considered  sufficient;  and  in  tort,  because  the  fact  that  the  de- 
fendant was  a  jeweller  would  be  damning  evidence  that  he  knew 
one  stone  from  another. 
Test  to  be  It  is  often  a  difficult  matter  to  decide  whether  the  seller  in- 

applied  to        tended  his  representation  to  be  a  warranty  or  not.     The  test  to 
determine  his  intention  is,  did  he  assume  to  assert  a  fact  of  ivhich 
the  buyer  was  ignorant?  If  he  did,  he  warranted.  Two  well  known 
Power  v.  picture  dealing  cases  illustrate  this  distinction.     In  one  of  them 

Barham  and    ^ie  seller,  at  the  time  of  sale,  gave  the  following  bill  of  parcels: — 
Jeudwine  v. 

"la"e-  "  Four  pictures,  Views  in  Venice,  Canalctto,  £160." 

It  was  held  that  the  jury  might  very  well  find  that  the  words 


WARRANTIES.  161 

imported  a  warranty  that  Canaletto  had  painted  the  pictures  (m). 
In  the  other  case,  a  sea-piece  and  a  fair  had  been  sold,  the  former 
being  catalogued  as  by  Claude  Lorraine,  and  the  latter  by  Ten- 
iers.  It  was  held  that,  as  those  artists  had  lived  so  long  ago,  it 
•was  impossible  for  anyone  to  be  sure  whether  the  pictures  were 
by  them  or  not;  the  seller  could  not  be  taken  to  have  asserted  a 
fact,  but  had  merely  expressed  his  opinion  on  the  subject;  there- 
fore he  had  not  warranted  (n). 

Difficult  questions  of  construction  frequently  arise  when  a  horse  Questions  of 
is  sold  with  a  warranty.     In  one  case  the  receipt  ran  as  follows: —  construct  ion. 

"  Received  of  Mr.  Budd  £10  for  a  grey  four-year-old  colt  warranted 
sound  in  every  respect.'11 

It  was  held  that  this  warranty  referred  only  to  the  soundness,, 
and  that  the  age  was  mere  matter  of  description  (o).  In  another 
case  the  seller  of  a  mare  said  "Ae  never  warranted,  he  tcouldn't 
even  warrant  himself;  but  the  mare  was  sound  to  the  best  of  his 
knowledge."  It  was  held  that  he  must  be  taken  to  have  war- 
ranted that  the  mare  was  sound  to  the  best  of  his  knowledge  (p). 

A,  general  warranty  does  not  extend  to  obvious  defects  (pp).  If  Obvious 
I  sell  you  a  horse  warranting  that  it  is  sound  and  perfect  in  defects. 
every  respect  when  both  of  us  can  see  it  has  no  tail,  you  cannot 
bring  an  action  against  me  for  breach  of  warranty  on  the  ground 
of  the  missing  appendage.  If,  however,  the  defect,  though  ob- 
vious, is  yet  not  of  a  permanently  injurious  character,  it  will  be 
covered  by  a  general  warranty.  A  man  once  sold  a  race-horse  to 
a  sporting  attorney  with  a  warranty  of  soundness,  though  the 
horse  was  obviously  suffering  from  a  splint.  But  some  splints 
cause  lameness  and  others  do  not,  and,  as  it  was  uncertain  what 
would  be  the  result  in  this  case,  the  warranty  was  held  to  ex- 
tend to  it.  Moreover,  however  obvious  a  defect  may  be,  if  the 
seller  agrees  to  deliver  the  horse  all  right  at  the  end  of  a  partic- 
ular period,  the  warranty  will  include  the  defect  (q).  A  person 
who  takes  a  horse  with  a  warranty — it  has  been  held  in  a  case  where 
a  man  bought  a  horse  with  "  an  extraordinary  convexity  of  the 
cornea  of  the  eye"  which  produced  short-sightedness  and  made 
the  animal  liable  to  shy,— is  not  bound  to  use  extreme  diligence 
in  discovering  defects  (r). 

The  seller  may,  of  course,  place  limitations  on  the  warranty  he  q     if  a 
gives.     At  a  horse  repository,  for  instance,  there  was  a  notice  warranty, 
stuck  up  on  a  board  to  the  effect  that  warranties  given  at  that 
establishment  should  remain  in  force  only  till  twelve  o'clock  the 

(m)  Power  v.  Barham,  4  Ad.  Ry.  124. 

&  E.  473.  ( pp)  Margetson  v.  Wright,  8 

(n)  Jeudwine  v.  Slade,  2  Esp.  Bing.  454. 

572.  (q)  Liddard  v.  Kain,  2  Bing. 

(o)  Budd     v.    Fairmaner,    8  183. 

Bing.  52.  (r)  Holliday  v.  Morgan,  1  E. 

(p)  Wood  v.  Smith,  5  M.  &  &  E.  1. 


162  WARRANTIES. 

next  day  unless  in  the  meantime  the  purchaser  sent  in  a  certifi- 
cate of  unsoundness.  It  was  held  that  purchasers  who  were 
aware  of  it  were  hound  hy  this  notice  (s).  A  similar  condition 
was  held  binding  on  the  purchaser  in  the  recent  case  of  Hinoh- 
Gliffe  v.  Barwick  (h,  where,  however,  there  were  no  words  limits 
ing  the  duration  of  the  warranty,  but  the  horse  was  to  he  re- 
turned by  a  particular  time  the  next  day  and  then  tried. 

What  is  The  term  "  sound  "  in  the  warranty  of  a  horse  or  other  animal 

soundness.  implies  the  absence  of  any  disease,  or  seeds  of  disease,  which  ac- 
tually diminishes,  or  in  its  progress  will  diminish,  its  natural 
usefulness  in  the  work  to  which  it  would  properly  and  ordina- 
rily be  applied  («).  A  temporary  lameness  has  been  held  to  be 
unsoundness  (a);  so  has  a  cough  (y).  But  mere  badness  of  shape 
is  not  unsoundness  (s);  nor  is  roaring,  unless  symptomatic  of 
disease  (a).  Crib-biting  is  not  unsoundness,  but  vice  (b).  A 
nerved  horse  is  unsound  (c).     So  is  a  chest-fouudered  horse  (d). 

Remedies  lor  A  breach  of  warranty  on  the  sale  of  a  specific  chattel  does  not 
breach  of  generally  entitle  the  buyer  to  reject  and  return  the  article.  His 
warranty.  remedy  is  either  to  sue  the  seller  for  damages,  or  to  set  off  the 
breach  when  an  action  is  brought  against  him  for  the  price  (e). 
If,  however,  the  subject  matter  of  the  sale  is  not  in  existence  or 
not  ascertained  at  the  time  of  the  contract,  he  may  refuse  to  ac- 
cept an  article  not  in  accordance  wijh  the  warranty.  To  entitle 
him,  however,  thus  to  return  the  goods  and  rescind  the  contract, 
he  must  be  careful  not  to  make  any  further  use  of  them  than  is 
necessary  to  give  them  a  fair  trial.  If  the  purchaser  sues  upon 
the  warranty,  he  need  not  return  the  article  sold  (/).  See  also 
the  recent  case  of  Wagstaff  v.  Shorthorn  Dairy  Co.  (ff),  where 
there  was  a  sale  of  seed  potatoes,  and  the  potatoes  were  not  up 
to  the  standard  of  the  warranty.  It  was  held  that  the  purchaser 
was  entitled  to  the  difference  in  value  between  the  crop  actually 
produced  and  the  cvop  that  would  have  been  produced  if  the 
warranty  had  been  complied  with,  if  it  were  a  reasonable  thing 
for  the  purchaser  to  plant  the  seed  without  examination. 

(s)  Bywater  v.  Richardson,  1  524. 

Ad.  &  E.  508.  (b)  Scholefield  v.  Robb,  2  M. 

{t)  5  Ex.    Div.    177,  and  see  &  Rob.  210. 

Gorton  v.  Mackintosh,  31  W.  R.  (c)  Best   t.    Osborne,  Ry.   & 

232.  M.  290. 

(w)  Kiddell  v.  Burnard,  9  M.  (d)  Atterburyr.  Fairmanner, 

&  W.  668.  8  Moore,  32. 

(x)  Elton  ».  Brogden,  4  Camp.  (e)  Street  v.  Blay,  2  B.  &  Ad. 

281.  456. 

(y)  Bates  r.   Stephens,  2   M.  (/)  Fielder  v.  Starkin,   1   H. 

&  Rob.  157.  Bl.  17,  and   Pateshall  v.  Tran- 

(z)  Dickinson    r.    Follett,    1  ter,  3  Ad.  &  E.  103. 

M.  &  Rob.  299.  (/)  1  C.  &  E.  324. 

(a)  Bassett  v.  Collis,  2  Camp. 


WARRANTY    DURING    TREATY    FOR    SALE.  168 


Warranty  must  be  during  Treaty  for  Sale. 

HOPKINS  r.  TANQUERAY.  [65,] 

[15  C.  B.  130  (1854).] 

Mr.  Tanqueray  advertised  his  horse  "California"  for 
sale  at  Tattersall's.  The  day  before  the  sale,  happening 
to  go  there,  he  found  his  friend  Hopkins  kneeling  down 
and  carefully  scrutinizing  "  California's  "  legs,  where- 
upon he  remarked,  "  My  dear  fellow,  you  needn't  exam- 
ine his  legs;  you  have  nothing  to  look  for;  I  assure  you 
he'sperfectly  sound  in  every  respect;"  to  which  Hop- 
kins replied,  "  If  you  say  so,  I  am  perfectly  satisfied," 
and  immediately  got  up.  The  next  day  Hopkins  at- 
tended the  sale,  and  bought  the  horse,  having,  as  he 
said,  determined  to  do  so  because  of  Tanqueray's  posi- 
tive assurance  that  he  was  sound.  There  was  no  writ-  ' 
ten  warranty,  and  it  was  admitted  that  when  Tanque- 
ray said  the  horse  was  sound  he  quite  believed  it  was. 
Hopkins  now  sought  to  make  out  that  Tanqueray's  as- 
sertion on  the  day  before  the  sale  was  equivalent  to  a 
warranty.  It  was  held,  however,  that  that  assertion 
formed  no  part  of  the  contract  of  sale,  and  therefore  did 
not  amount  to  a  warranty. 

The  plaintiff  made  no  imputation  of  fraud  here.     He  sued  in  Previous  rep- 

contract,  not  in  tort,  his  point  being  that,  notwithstanding  the  reti-  resentations 

cence  of  the  auctioneer  at  the  time  the  horse  was  put  up,  what  can.n<? 

x  r  relied  on  as  a 

the  defendant  had  said  to  him  on  the  day  before  the  sale  amounted  warranty 

to  a  warranty.  But  a  warranty  must  be  given,  if  at  all,  at  the 
time  of  the  sale.  Representations  and  assertions  made  before  it, 
unless  continuing,  or  bottomed  in  fraud,  are  no  good  (g). 

So,  too,  a  warranty  given  after  a  sale  is  void  unless  there  is  a  "Warranty 
new  consideration  ;  for  the  first  consideration  is  exhausted  by  the  given  after- 
transfer  of  the  chattel  without  a  warranty  (h).     ' '  It  frequently  wards  re- 

€i  u  i  rp  s  n  t*  \v 
happens  that  persons  (not  lawyers)  hardly  consider  this  ;  they   J     •iHera- 

tion. 
(g)  See  Ormrod  v.  Huth,   14         (h)  Roscorla  p.  Thomas,  3  Q. 
M.  &  W.  651.  B.  234. 


164 


WARRANTY    DURING    TREATY    FOR    SALE. 


Horse  deal- 


<  )ral  repre- 
sentations 
cancelled  by 
written  con- 
tract. 


quote  all  the  seller  or  dealer  says  as  he  buttons  up  the  cheque  in 
his  pocket,  as  if  that  could  in  an}-  way  he  a  warranty.  Some 
dealers  and  horse-sellers  say  all  sorts  of  things  when  copeing  or 
selling  a  horse,  hut  they  confine  themselves  to  puff,  and  never 
commit  themselves  to  any  statement  of  a  fact  as  to  the  subject  of 
the  deal.  It  is  not  until  the  bargain  is  entirely  over  that  they 
comfort  the  buyer  by  statements  which  he  fondly  looks  upon  as 
warranties,  but  which  cannot  be  so  considered"  (i).  "When  the 
terms  of  a  contract  have  been  reduced  into  writing,  no  oral  rep- 
resentation can  be  relied  on  as  a  -warranty.  The  written  con- 
tract shortens  and  corrects  the  representations,  so  that  whatever 
terms  are  not  contained  in  the  document  must  be  struck  out  of 
the  transaction  (k).  But  a  mere  memorandum,  not  intended  to 
be  final,  will  not  exclude  oral  evidence  of  a  warranty.  Thus,  in 
Allen  t'.Pink.  Allen  v.  Pink  (I),  where  a  paper  was  signed  by  the  vendor  and 
given  to  the  vendee  containing  "  Bought  of  G.  Pink,  a  horse  for 
the  sum  of  £7  2s.  6</.,"  it  was  held  that  evidence  might  be  given 
of  a  contemporaneous  warranty.  "  The  general  principle  stated 
by  Mr.  Byles,''  said  Lord  Abinger,  C.B.,  "  is  quite  true,  that  if 
there  has  been  a  parol  agreement,  which  is  afterwards  reduced 
by  the  parties  into  writing,  that  writing  alone  must  be  looked  to 
to  ascertain  the  terms  of  the  contract.  But  the  principle  does  not 
apply  here.  There  was  no  evidence  of  any  agreement  by  the 
plaintiff  that  the  whole  contract  should  be  reduced  into  writing 
by  the  defendant.  The  contract  is  first  concluded  by  parol,  and 
afterwards  the  paper  is  drawn  up  which  appears  to  have  been 
meant  merely  as  a  memorandum  of  the  transaction,  or  an  infor- 
mal receipt  for  the  money,  not  as  containing  the  terms  of  the 
contract  itself." 


Implied   Warrant]/  of  Title. 


[66.] 


MOKLEY  r.  ATTENBOROUGH. 
[3  Exch.  500  (1849).] 


The  defendant  in  this  case  was  the  well  known  pawn- 
broker of  that  name.  A  person  named  Poley  having 
hired  a  harp  of  Messrs.  Chappell,  music  sellers,  pledged  it 


(?)  Lascelles  on  Horse  War- 
ranty (2nd  ed.),  p.  34. 

(k)  Pickering  v.    Dowson,   4 


Taunt.  779. 

(/)  4  M.  &  W.  140. 


IMPLIED  WARRANTY    OF   TITLE.  165 

with  the  defendant  for  £15  15s.  on  the  terms  that  if  the 
sum  advanced  were  not  repaid  within  six  months  he 
should  be  at  liberty  to  sell  it.  The  harp  not  being  re- 
deemed within  the  stipulated  time,  Attenborough  sold 
it  to  the  plaintiff.  All  this  came  to  the  ears  of  Messrs. 
Chappell,  who  got  back  their  harp  from  Morley;  and 
that  gentleman,  to  recoup  himself,  now  brought  an  ac- 
tion against  the  pawnbroker,  alleging  that  the  harp  was 
sold  to  him  with  an  implied  warranty  of  title.  This 
view,  however,  did  not  prevail,  for  the  (judges  decided 
that  in  the  absence  of  an  express  warranty  all  that  the 
pawnbroker  asserted  by  his  offer  to  sell  was  that  the 
thing  had  been  pledged  to  him  and  was  unredeemed, 
not  that  he  was  the  lawful  owner. 

The  leading  case  (which  was  followed  in  Bagueley  v.  Haw- 
ley)  (m)  is  the  chief  authority  for  the  rule  that  on  the  sale  of  a 
chattel  personal  there  is  no  implied  warranty  of  title.     The  rule,  how-  Rule  hardly 
ever,  may  be  said  to  be  pretty  well  "eaten  up  by  the  excep-  really  exists, 
tions"  (n).     For  example,  the  sale  of  goods  in  a  shop,  or  in  a  ware- 
house, imports  an  implied  warranty  of  title  ;  and,   indeed,   Mr. 
Benjamin,  in  his  book  on  the  Sale  of  Personal  Property,  goes  so 
far  as  to  state  the  effect  of  Eicholtz  v.  Bannister  (o)  (where  a  Man-  p;..}10]+z  v 
Chester  job  warehouseman  in  his  warehouse  sold  the  plaintiff  a  Bannister, 
quantity  of  woollen  goods  which  he  described  as  "a  job  lot  just 
received  by  him  ")  to  be  that  "the  sale  of  a  personal  chattel  im- 
plies an  affirmation  by  the  vendor  that  the  chattel  is  his,  and  therefore 
he  warrants  the  title,  unless  it  be  shown  by  the  facts  and  circum- 
stances of  the  sale  that  the  vendor  did  not  intend  to  assert  own- 
ership, but  only  to  transfer  such  interest  as  he  might  have  in  the 
chattel  sold"  (p).     The  latter  part  of  Mr.  Benjamin's  rule  may 
be  illustrated  by  the  sale  of  a  forfeited  pledge  by  a  pawnbroker,  o  j    j)V 
who  must  be  considered  as  undertaking  merely  that  the  subject  pawnbroker, 
of  sale  is  a  pledge,  and  is  irredeemable,  and  that  he  does  not  know 
of  any  defect  of  title  (q).     See  also  the  recent  case  of  Raphael  v. 
Burt  (qq),  where  there  was  held  to   be  an  implied  warranty  of 
title  on  the  sale  of  some  American  bonds  which  turned  out  to 
have  been  stolen. 

(m)  L.  R.  2  C.  P.  625.        .  ed.),  p.  631. 

(n)  Per  Lord  Campbell  in  Sims  (q)  See  Chapman   v.   Speller. 

v.  Marryat,  17  Q.  B.  291.  14  Q.  B.  621. 

(o)  17  C.  B.,  N.  S.  708.  (qq)  1  C.  &  E.  325. 
(p)  Benj.  Sale  of  P.   P.   (3rd 


1S6 


IMPLIED    WARRANTIES. 


Implied   Warranties. 


[67.] 


Caveat  emptor. 


Particular 
purpose. 


Bigge  v. 
Parkinson. 


JONES  v.  JUST. 
[L.  R.  3Q.  B.  197  (1868).] 

Jones  and  Co.,  Liverpool  merchants,  agreed  to  buy 
from  Mr.  Just,  a  London  merchant,  a  number  of  bales 
of  Manilla  hemp  which  were  expected  to  arrive  in  some 
ships  from  Singapore.  The  hemp  did  arrive,  but,  when 
it  was  examined,  it  was  found  to  be  so  much  damaged 
that  it  would  not  pass  in  the  market  as  Manilla  hemp  ; 
and  Jones  and  Co.,  who  had  paid  the  price  before  the 
ships  arrived,  had  to  sell  it  at  75  per  cent,  of  the  price 
which  similar  hemp  would  have  realised  if  undamaged. 
This  was  an  action  by  them  against  the  seller,  who  was 
admitted  to  have  acted  quite  innocently  in  the  matter, 
to  recover  the  difference;  and  it  was  held  that  he  must 
pay  it,  on  the  ground  that  in  every  contract  to  supply 
goods  of  a  specified  description,  which  the  buyer  has 
no  opportunity  of  inspecting,  the  goods  must  not  only 
correspond  to  the  specified  description,  but  must  also 
be  saleable  or  merchantable  under  that  description. 

The  maxim  caveat  emptor  generally  applies  as  to  the  quality 
of  goods  sold,  and,  unless  there  is  an  express  warranty,  there 
is  none. 

But  a  warranty  is  implied  in  the  following  cases: — 

(1.)  When  goods  are  sold  by  a  trader  for  a  particular  purpose  of 
which  he  is  well  aware — e.g.,  copper  for  sheathing  a  ship, — so 
that  the  buyer  necessarily  trusts  to  the  judgment  or  skill  of  the 
seller,  they  must  be  reasonably  fit  for  the  purpose  (r). 

A  case  often  referred  to  is  Bigge  v.  Parkinson  (s),  where  a  pro- 
vision dealer  had  undertaken  to  supply  a  troop-ship  with  stores 
for  a  voyage  to  Bombay,  guaranteed  to  pass  the  survey  of  certain 
officers,  but  with  no  warranty  of  their  being  fit  for  the  purpose.  It 


(r)  Jones  v.    Bright,   5  Bing. 
533,  and  Gray  v.   Cox,    4  B.   & 


C.  108. 

(s)  7  H.  &  N.  955. 


IMPLIED    WARRANTIES  167 

was  held  however  (in  spite  of  the  guarantee),  that  such  a  war- 
ranty must  be  implied. 

But  in  the  case  of  the  sale  of  meat  in  a  market,  which  the  Food, 
buyer  inspects  and  selects  himself,  there  is  no  implied  warranty 
of  fitness  for  human  food  (().     The  butcher,  however,  might  be 
liable  in  tort  to  the  customer  if  the  bad  meat  made  him  ill  (w). 

The  implied  warranty  of  this  class  covers  latent  undiscoverable 
defects  (%). 

(2.)  When  the  contract  is  to  furnish  manufactured  goods,  they  Manufaclur- 
must  be  of  a  merchantable  quality  (y).  cd  goods. 

And  this  is  so  even  when  the  sale  is  by  sample.  Grey  shirtings  Mody  r. 
were  delivered  according  to  sample,  but  it  was  then  discovered  S80  • 
that  15  per  cent,  of  china  clay  had  been  introduced  into  the 
fabric,  rendering  it  unmerchantable.  The  presence  of  the  china 
clay  could  not  have  been  detected  by  an  ordinary  examination 
of  the  sample;  and  it  was  therefore  held  that  an  action  could  be 
maintained  for  breach  of  an  implied  warranty  of  merchantable 
quality  («). 

In  the  absence  of  usage,  there  is  an  implied  contract  by  am  ami-  Johnson  v. 
facturer  who  sells  goods  that  they  are  of  his  own  make;  so  that  he  Ray  1  ton. 
would  not  be  justified  in  supplying   equally  excellent  articles 
made  by  some  other  manufacturer  (a). 

(3.)  In  the  case  of  a  sale  by  sample,  there  is  an  implied  under-  Sample. 
taking  that  the  sample  is  fairly  taken  from  the  bulk. 

But  no  further  warranty  (unless  it  would  have  arisen  if  the  sale 
had  not  been  by  sample)  is  implied.  In  the  well  known  case  ot 
Parkinson  v.  Lee  {b)  the  defendant  sold  the  plaintiff  a  quantity  Parkinson  ft, 
of  hops  by  sample.  The  bulk  fairly  answered  to  the  sample,  but  Lee. 
both  sample  and  bulk  had  a  latent  defect  which  made  the  pur- 
chase useless  to  the  plaintiff.  It  was  held  that  there  was  no  im- 
plied warranty  that  the  hops  were  merchantable  or  good  for  any- 
thing. "Here,"  said  Lawrence,  J.,  "was  a  commodity  offered 
for  sale,  which  might  or  might  not  have  a  latent  defect.  This 
was  well  known  in  the  trade;  and  the  plaintiff  might,  if  he 
pleased,  have  provided  against  the  risk  by  requiring  a  special 
warranty.  Instead  of  which,  a  sample  was  fairly  taken  from  the 
bulk,  and  he  exercised  his  own  judgment  upon  it." 

(4.)  The  custom  of  a  particular  trade  may  raise  an  implied  war-  Custom, 
ranty  (c). 

(t)  Emmerton  v.  Matthews,  7  (z)  Mody  v.  Gregson,  L.  R.  4 

H.  &  N.  586,  and  Smith  v.  Ba-  Ex.  49,    and    see    Heilbutt    v. 

ker,  40  L.  T.,  N.  S.  Hickson,  L.  R.  7  C.  P.  438. 

(«)  Burnby  v.  Bollett,  16  M.  (a)  Johnson  v.  Raylton,  7  Q. 

&  W.  644.     '  B.  D.  438. 

(a;)  Randall  v.  Newson,  2  Q.  (b)  2  East,  314. 

B.  D.  102.  (c)  Jones  v.  Bowden,  4  Taunt. 

(y)  Laing  v.  Fidgeon,6Taunt.  847. 
108. 


168 


IMPLIED    WARRANTIES. 


Sale  by  de- 
scription. 


Trade  Murks. 


Black  friars 
Bridge. 


Longer  voy- 
age then  ex- 
pected. 


(5.)  Under  the  circumstances  of  the  leading  case,  that  is  to  say 
where  goods  are  sold  by  description,  and  the  buyer  has  not  seen 
them,  there  is  an  implied  warranty,  not  only  that  they  answer 
the  description,  but  that  they  are  merchantable. 

But  it  is  not  an  implied  term  in  the  contract  that  the  thingsold 
shall  be  fit  for  the  purpose  for  which  it  is  required  (<7). 

(6.)  By  the  19th  and  20th  sections  of  the  Merchandise  Marks 
Act,  1862  (e),  a  warranty  of  genuineness  is  to  be  implied  from  a 
trade-mark  or  description. 

As  to  implied  warranties  on  the  letting  of  land  or  houses,  see 
Smith  v.  Marrable,  p.  114. 

One  of  two  recent  cases  on  implied  warranty  may  just  be  men- 
tioned in  passing. 

In  1804  the  Corporation  of  London  wanted  to  take  down  Black- 
friars  Bridge,  and  build  a  new  one.  Accordingly,  they  prepared 
plans  and  a  specification,  and  invited  tenders.  A  Mr.  Thorn  con- 
tracted to  do  the  work,  and  set  about  it.  But  when  he  had  got 
some  way,  it  turned  out  that  part  of  the  plan,  which  consisted  in 
the  use  of  caissons  could  not  be  adopted,  and  finally  Thorn  found 
it  necessary  to  go  to  law  with  the  corporation  for  the  loss  of  time 
and  trouble  occasioned  by  the  failure  of  the  caissons.  It  was 
held,  however,  that  there  was  no  implied  warranty  that  the  bridge 
could  be  built  according  to  the  plans  and  specification  (/). 

In  another  case,  the  plaintiff,  a  master  mariner,  had  agreed 
with  the  defendants  for  a  lump  sum  to  take  a  certain  specified 
steam-tug  of  theirs,  towing  six  barges,  from  Hull  to  the  Brazils, 
he  paying  the  crew  and  providing  food  for  all  on  board  for  seven- 
ty days.  It  was  held  that  there  wras  no  implied  undertaking  by 
the  defendants  that  their  steam-tug  was  reasonably  efficient  for 
the  purposes  of  the  voyage,  and  that  the  master  mariner  had  no 
remedy  against  them  though  it  turned  out  that  the  engines  of  the 
vessel  were  so  defective  that  the  voyage  occupied  a  great  deal 
more  time  than  it  ought  to  have  done  (</).  See  also  the  recent 
case  of  Hall  v.  Billingham  (gg),  where  it  was  held  (under  37  & 
.38  Vict.  c.  51  s.  4)  that  in  every  case  of  a  contract  for  the  sale  of 
a  chain  cable,  whether  for  use  on  a  British  ship  or  not,  there  is 
an  implied  warranty  that  it  has  been  properly  tested  and 
stamped. 


(d)  Chanter  r.  Hopkins,  4  M. 
..I-  \Y.  400.  and  Ollivant  v.  Bav- 
ley,  5  Q.  B.  288. 
\e)  25  &  20  Vict.  c.  88. 


(/ )  Thorn  v.  London,  1  App. 
Ca.  120. 

(g)  Robertson  v.  Amazon, &c, 
Co.,  7  Q.  B.  D.  598. 

(gg)  34  W.  R.  122. 


WARRANTIES    AND    REPRESENTATIONS.  109 


Warranties  and  Representations . 

BEHN  p.  BUTtNESS.  [68.] 

[3  B.  &  S.  751  (1863).] 

This  was  an  action  by  a  ship-owner  against  a  char- 
terer for  not  loading.  In  the  charter-party  the  plain- 
tiff had  described  himself  as  "  owner  of  the  good  ship 
or  vessel  called  the  Martaban,  of  420  tons  or  there- 
abouts, noiv  in  the  port  of  Amsterdam."  Unfortunately 
the  good  ship  the  Martaban  was  not  just  then  "  in  the 
port  of  Amsterdam;"  and  the  question  was  whether  the 
words  were  a  warranty  or  merely  a  representation.  It 
was  held  that  they  were  a  warranty,  and  therefore  that 
the  plaintiff  had  not  fulfilled  his  part  of  the  contract. 

In  the  judgment  in  the  leading  case  representations  are  defined  Definition  of 
as  "  statements  or  assertions  made  by  the  one  party  to  the  other,  representa- 
before  or  at  the  time  of  the  contract,  of  some  matter  or  circum-  tlons- 
stance  relating  to  it."     Now  it  is  clear  law  (h)  that  an  action  of 
deceit  will  lie  when  the  plaintiff  has  been  induced  to  enter  into 
a  contract  by  representations  of  the  defendant  which  were  false 
in  fact  and  which  were  also  false  to  the  knowledge  of  the  defend- 
ant, or,  at  all  events,  were  recklessl}'  made  by  him.     But  when 
wc  come  to  consider  the  case  of  a  representation  false  in  fact,  but 
at  the  same  time  made  innocently  and  in  good  faith,  the  matter  be- 
comes one  of  very  considerable  difficulty.     As  a  general  rule,  it 
may  perhaps  be  laid  down  that  such  an  untrue  representation 
will  not  affect  the  validity  of  the  contract  nor  give  rise  to  any 
cause  of  action  whatsoever,  unless  it  is  made  a  condition  of  the  What 
contract.     If  it  is  so  made  a  condition,  the  contract,  being  condi-  amounts  to  a 
tional  upon  its  truth,  cannot,  of  course,  be  enforced  by  the  party  condition, 
from  whom  the  untrue  statement  proceeded.     This  observation   ^  'wf^'1"1 
may  be  well  illustrated  by  considering  the  important  case  of  Ban- 
nerman  r.  White  (i),  an  action  by  a  hop-grower  against  a  hop- 
merchant  for  the  price  of  hops  sold  to  the  latter.     The  Burton 
brewers,  rightly  or  wrongly,  had  got  it  into  their  heads  that  the 
quality  of  their  beer  had  deteriorated  through  the  emploj-ment  of 
sulphur  in  the  cultivation  of  hops,  and  had  the  year  before  sent 

(h)  Seeper  Jessel.  M.R., Smith     27,  at  p.  44. 
v.  Chad  wick,  L.  R.  20  Ch.   D.         (i)  10  C.  B.,  N.  S.  844. 


170 


WARRANTIES    AND   REPRESENTATIONS. 


Representa- 
tion amount- 
ing to  war- 
ranty. 


Relief  on 
equitable 
grounds. 


a  circular  round  to  all  the  growers,  saying  that  they  wouldn't 
buy  any  more  hops  which  had  had  sulphur  applied  to  them.  This 
being  so,  at  the  very  commencement  of  the  negotiations  between 
the  plaintiff  and  the  defendant,  the  latter  asked  the  former  if  any 
sulphur  had  been  used,  adding  that,  if  any  had,  he  must  decline 
to  consider  any  offer.  The  plaintiff  replied  that  none  had  been 
used,  and  so  the  defendant  agreed  to  purchase  the  year's  crop. 
As  a  matter  of  fact,  the  plaintiff  had  used  sulphur  to  about  five 
acres  of  the  hops  (the  whole  growth  being  300  acres)  having  done 
so,  for  the  purpose  of  trying  a  new  machine  called  a  sulphurator  ; 
and  had  afterwards  mixed  the  sulphured  and  unsulphured  hops 
all  up  together.  It  may  be  taken  that  there  was  no  fraudulent 
intention  on  the  part  of  the  plaintiff.  The  effect  of  the  finding 
of  the  jury  was  that  the  defendant  required  and  the  plaintiff  gave 
his  undertaking  that  no  sulphur  had  been  used.  "This  under- 
taking," said  Erie,  C.J.,  in  delivering  the  decision  of  the  court, 
"  was  a  preliminary  stipulation,  and  if  it  had  not  been  given,  the 
defendant  would  not  have  gone  on  with  the  treaty  which  re- 
sulted in  the  sale.  In  this  sense  it  teas  the  condition  upon  which 
the  defendant  contracted."  It  was  held,  therefore,  that,  as  the 
plaintiff  had  not  fulfilled  the  condition,  he  could  not  enforce  the 
sale. 

But  it  may  be,  too,  that  a  representation  is  of  such  a  nature 
and  made  under  such  circumstances  as  to  amount  to  a  warranty. 
And  this  is  a  very  different  thing  from  a  condition  in  the  strict 
legal  meaning  of  the  term,  although  no  doubt  some  confusion  has 
arisen  from  a  careless  interchange  of  the  two  words.  A  icarranty, 
though  part  of  the  contract,  is  really  in  itself  a  separate  and  dis- 
tinct undertaking  that  a  particular  representation  shall  be  true, 
and,  if  in  the  end  it  proves  to  be  untrue,  the  remedy  is  for  breach 
of  this  agreement  of  warranty,  so  that  the  original  contract  is  not 
thereby  avoided  as  it  would  be  on  the  non-performance  of  a  con- 
dition. 

There  exists,  too,  a  large  class  of  cases  in  which  relief  is  given 
on  equitable  grounds  to  persons  induced  to  enter  into  agreements 
on  the  faith  of  innocent  misrepresentations.  These  are  cases  in 
which  one  party  to  the  contract  has,  from  the  nature  of  the  trans- 
action, special  and  peculiar  means  of  knowledge  (k)  as  to  the 
subject-matter  from  which  the  other  party  is  excluded,  e.g.  (I), 
agreements  for  the'sale  of  landed  property  (in),  or  contracts  for 
Marine  Insurance.  In  many  instances  of  this  kind  the  mere 
omission  to  state  material  facts  is  in  itself  sufficient  to  enable  the 
deceived  party  to  release  himself  from  his  obligation. 


(k)  As  to  ease  where  plaintiff 
had  means  of  discovering  that 
the  representation  was  untrue, 
see  Redgrave  v.  Hurd,  L.  R.  20 
Ch.  D.  1. 


(I)  Phillips  v.  Caldcleugh.  L. 
R.  4  Q.  B.  159. 

(m)  Prouclfoot  v.  Montefiore, 
L.  R.  2  Q.  B.  511. 


NECESSARIES    FOR    INFANTS.  171 


Necessaries  for  Infants. 

PETERS  r.  FLEMING.  [69.] 

[6M.  &W.  43  (1840).] 

Mr.  Fleming  was  one  of  those  fast  undergraduates 
whose  efforts  have  contributed  so  liberally  towards  the 
settlement  of  the  law  of  "necessaries"  for  infants. 
During  his  career  at  Cambridge,  and  while  under  age, 
he  became  indebted  to  a  tradesman  of  the  town  for 
rings,  pins,  a  watch,  and  various  other  articles,  which 
were  supplied  to  him  on  tick.  AVhen  the  young  man 
came  of  age,  the  tradesman  brought  an  action  against 
him,  and, — perhaps  rather  to  his  own  surprise, — got 
his  money.  "The  true  rule,"  said  Parke,  B.,  "I  take 
to  be  this,  that  all  such  articles  as  are  pure/?/  orna- 
mental are  not  necessary  and  are  to  be  rejected,  be- 
cause they  cannot  be  requisite  for  anyone;  and  for  such 
matters,  therefore,  an  infant  cannot  be  made  responsible. 
But,  if  they  are  not  strictly  of  this  description,  then 
the  question  arises,  whether  they  were  bought  for  the 
necessary  use  of  the  party  in  order  to  support  himself 
properly  in  the  degree,  state  and  station  of  life  in  ichich 
he  moved;  if  they  were,  for  such  articles  the  infant 
may  be  responsible. 


RYDER  v.  WOMBWELL.  [70.] 

[L.  R.  4  Ex.  32  (1868).] 

Mr.  Wombwell  was  the  younger  son  of  a  deceased 
Yorkshire  baronet,  and  "  moved  in  what  is  called  the 
highest  society."  During  his  minority  he  had  £500 
a  year,  and  when  he  came  of  age  would  be  entitled  to 


172  NECESSARIES    FOR   INFANTS. 

a  lump  sum  of  £20,000.  He  was  a  friend  of  the  Mar- 
quis of  Hastings,  and  occasionally  rode  races  for  him. 
While  yet  a  minor,  he  ordered  of  Kyder  and  Co.,  the 
jewellers,  a  silver  gilt  goblet  of  the  value  of  £15  15s., 
and  a  pair  of  studs  of  the  value  of  £25.  The  studs 
were  for  his  own  wearing,  but  the  goblet  was  intended, 
with  an  inscription,  as  a  present  to  the  Marquis.  To 
an  action  for  the  price  of  these  articles,  Wombwell  set 
up  the  defence  of  "  infancy,"  to  which  the  reply  was 
"  necessaries." 

At  first  the  judges  thought  the  studs  were  "  necessa- 
ries," though  not  the  goblet;  but  it  was  finally  re- 
solved that  neither  the  studs  nor  the  goblet  were  neces- 
saries. 

A  person  under  the  age  of  twenty-one  is  an  "  infant,"  and  the 
law  so  far  takes  pity  on  his  "imbecility  and  indiscretion"  (n) 
that  his  contracts  will  be  binding  on  him  only  if  they  are  neces- 
sary and  for  his  benefit. 

When  a  tradesman  brings  an  action  against  a  young  man  for 
the  price  of  goods  supplied  to  him,  it  is  a  common,  if  not  a  very 
creditable,  ground  of  defence  that  at  the  time  when  he  ordered 
them  the  defendant  was  an  infant,  and  the  goods  not  "neces- 
sarics. " 
Necessaries.  Food,  clothes,  medicine,  and  the  •  like — such  things  as  are 
essential  to  life — are  what  the  lay  mind  would  understand  by 
"necessaries."  But,  in  process  of  time,  the  word  has  acquired 
a  technical  meaning  which  cannot  be  ascertained  in  a  particular 
instance  without  reference  to  the  cases.  Amongst  things  held  to 
be  "necessary  "  may  be  mentioned  a  servant's  livery  (o),  a  vol- 
unteer uniform  (;;),  horse  exercise  (q),  a  decent  burial  (r);  While, 
on  the  other  hand,  a  valuable  chronometer  (s),  cigars  and  to- 
bacco (0,  and  dinners  out  of  college  (u),  have  been  held  not  to 
be.  A  great  deal  depends  on  the  social  position  of  the  infant; 
and,  as  civilization  advances  and  luxuries  increase,  things  be- 
come admitted  into  the  class  of  "necessaries"  which,  when 
.simpler  tastes  prevailed,  might  have  been  dispensed  with.  The 
question,  whether  "  necessaries  "  or  not,  is  one  for  the  jury,  sub- 
ject to  the  control  of  the  court. 

(n)  Zouch  v.  Parsons,  3  Burr.  &  W.  252. 
1801.  (s)  Berolles  v.  Ramsay,  Holt, 

(o)  Hands  v.  Slaney,  8  T.  R.  N.  P.  77. 
578.  (t)  Bryant  v.  Richardson,  L. 

(p)  Coates  v.  Wilson,  5  Esp.  R.  3  Ex.  93. 
152.  (u)  Brooker  v.   Scott,  11  M. 

(q)  Hart  v.  Prater,  1  Jur.  623.  &  W.  67. 

(r)  Chappie  v.  Cooper,  13  M. 


NECESSARIES    FOR    INFANTS.  '  173 

An  infant  is  liable  for  "necessaries"  supplied  to  his  wife  just 
as  much  as  if  they  were  supplied  to  himself  (.r). 

Even,  however,  when  the  goods  are  "necessaries,"  the  infant  Already  well 
can  get  away  from  his  con  trad  by  showing  that  he  was  already  supplied, 
plentifully  supplied  with  such  things  ;  and  it  would  seem   to  be 
the  law  that  the  plaintiff's  not  knowing  it  isof  noconsequence  (//). 
But  the  fact  that  the  infant  had  a  good  allowance  which  he  ought 
to  have  spent  in  buying   "necessaries,"  only  did  not,  is  no  de- 
fence (z).     And  it  is  an  answer  to  the  plea  of  infancy  that  the 
defendant  cheated  the  tradesman  into  the  belief  that  he  was  of  praU(] 
age  (a). 

An  infant  landed  proprietor  may  grant  leases  when  it  is  clearly  Leases. 

to  his  advantage  to  do  so  ;  and  by  the   custom  of  gavelkind   he 

may  at  fifteen  sell  his  estate.     A  fair  contract  for  work  to  be  done 

by  him  is  binding  (6);  but  he  cannot  become  a  surety,   or  be 

made  liable  for  breach  of  warranty,  or  carry  on  a  trade  (c).     Nor 

need  an  infant  repay  money  lent  to  him,  even  though  lent  for 

the  purpose  of  his  buying  necessaries  with  it ;  for,  as  Parker,  C. 

J.,  shrewdly  suggested  in  a  case  (cl)  of  the  kind,  "  it  may  be  bor-  Rashness  of 

rowed  for  necessaries,  but  spent  at  a  tavern,  and  therefore  the  lending 

law  will  not  trust  him  but  at  the  peril  of  the  lender  who  must  P™.ne^ 

lnlants. 
lay  it  out  for  him."     An  infant  who  acquires  railway  shares  is 

in  the  same  situation  as  an  infant  acquiring  real  estate,  and  in 

an  action  for  payment  of  calls  the  defence  of  infancy  will  not  be 

sufficient  unless  it  shows  a  repudiation  of  the  shares  (c). 

Although  an  infant  (except  in  the  cases  stated  above)   cannot  other  nartv 
contract  so  as  to  bind  himself,  yet  he  binds  the  other  party ;  infan-  may  be 
cy  being  "a  personal  privilege  of  which  no  one  can  take  advan-  bound, 
tage  but  the  infant  himself."     Thus,  if  a  boy  of  seventeen  were 
to  become  infatuated  with  a  widow  of  forty  and  agree  to  marry 
her,  his  promise  to  her  would  not  be  actionable,  but  her's  to  him 
would  be  (/). 

The  "  Infants'  Relief  Act  "  (g),  provides  that  "no  action  shall  TSTo  ratifica- 
be  brought  whereby  to  charge  any  person  upon  any  promise  made  tion  will  re- 
after  full  age  to  pay  any  debt  contracted  during  infancy,  or  upon  Vlve  promise. 


(,r)  Turners. Trisby,l  Str.  168.  fourteen  years  of  age,  who  had 

(?/)  Bainbridge  v.  Pickering,  fraudulently  converted  to    his 

2  W.  Bl.  1325,  and  see  Ford  v.  own  use  goods  which  had  been 

Fothergill,    Peake,     229,    and  delivered  to  him  by  the  owner 

Barnes  v.  Toye,  13  Q.  B.  D.  410.  under  a  hiring  agreement,  could 

(z)  Burghart  v.  Hall,  4  M.  &  be   convicted   of  larceny   as  a 

W.  727.  bailee  under  24  &  25  Vict.   c. 

(a)  Rose.  N.  P.  (15th  ed.)  p.  96,  s.  3. 
598.  (c)  See  R.  r.  Wilson,  5  Q.  B. 

(ft)  Wood  r.  Fenwick,  10  M.  D.  28. 
&  W.  195;  but  see  R.  v.  Lord,         (rf)  Earler.  Peale,  1  Salk,  386. 
12  Q.   B.  757,   and  Meakin  v.         (e)  Mitchell's  case,  L.   R.   9 

Morris,  53  L.  J.  M.  C.  72.     In  Eq.  363. 

R.  v.  McDonald,  15  Q.  B.  D.  323,         (/)  Holt  v.  Ward,  2  Str.  939. 
it  was  held  that  an  infant  over         \g)  37  &  38  Vict.  c.  62,  s.  2. 

13   COMMON   LAW. 


174  *  NECESSARIES    FOR   INFANTS. 

any  ratification  made  after  full  age  of  any  promise  or  contract 
made  during  infancy,  whether  there  shall  or  shall  not  be  any  new  con- 
sideration. One  or  two  breach  of  promise  cases  have  called  for 
Courtship  1'l('  construction  of  this  section  ;  and  from  them  it  would  appear 
and  marriage  that,  before  the  young  lady  can  get  damages  from  the  defendant, 
she  must  show  distinctly  that  he  committed  himself  to  afresh 
promise  alter  he  came  of  age;  e.g.  (as  in  Ditcham  r.  Worrall  (/*)), 
by  asking  her  to  name  the  day,  or  (as  in  Xorthcote  v.  Doughty  (i)  ) 
by  saying,  "Now  I  may  and  will  marry  you  as  soon  as  lean."  The 
mere  continuance  of  amatory  conduct  will  not  do,  because  no 
new  promise  can  he  implied  from  such  attentions,  and  the  Act 
of  Parliament  prevents  their  being  looked  at  as  a  ratification  (k). 
By  the  first  section  of  the  Act  all  contracts  by  infants  for  the  re- 
payment of  money  lent,  or  for  goods  (not  necessaries)  supplied, 
and  all  accounts  stated  with  infants  are  declared  absolutely  void. 
Bargains    *  Closely  connected  with  the  present  subject  is  the  law  relating 

with  expect-  to  bargains  with  expectant  heirs.  Such  a  bargain  will  be  set  aside 
unless  the  purchaser  can  show  that  a  full  consideration  was  paid, 
or  that  the  bargain  was  approved  of  by  the  person  to  whose  es- 
tate the  expectant  heir  hoped  to  succeed.  But  the  heir  may,  af- 
ter being  relieved  from  his  necessities,  and  knowing  quite  what 
he  is  about,  ratify  the  transaction;  as  was  done  by  the  heir  ex- 
pectant in  Chesterfield  v.  Janseen  (I),  the  leading  case  on  the  sub- 
ject. This  relief  is  not  now  given  to  remaindermen  or  reversion- 
ers who  sell  their  interests,  merely  on  the  ground  of  under- 
value (m).  But  in  the  recent  case  of  Nevill  v.  Snelling  (n)  it  was 
held  that  the  rule  against  catching  bargains  is  not  restricted  to  the 
case  of  expectant  heirs,  but  extends  to  all  cases  in  which  uncon- 
scientious and  unfair  advantage  has  been  taken. 


ant  heirs 


Contracts  of  Lunatics. 


[71.]  BAXTER  v.  PORTSMOUTH. 

[5  B.  &  C.  140  (1826)J 

On  various  occasions  between  1818  and  1823  the  Earl 
of  Portsmouth  hired  carriages  and  horses  from  the  plain- 
tiff, and  thereby  incurred  the  bill  for  which  this  action 

(h)  5  C.  P.  D.  410.  (m)  31  Vict.  c.  4,  s.  1 ;  but  see 

(»)  4  C.  P.  D.  385.  Avlsford  v.  Morris,  L.  R.  8  Ch. 

(Jfc)  Coxhead  r.   Mullis.  3  C.     App.  484;  and  O'Rorke  v.  Bol- 

P.  D.  439.  ingbroke,  2  App.  Ca.  814. 

(0  2  Ves.  125.  (»)  43  L.  T.,  N.  S.  244. 


CONTRACTS    OF    LUNATICS.  175 

was  brought.  It  was  proved  that  the  plaintiff  had  no 
reason  to  suppose  his  lordship  to  be  of  unsound  mind; 
and  that  the  carriages,  &c,  were  constantly  used  by  him, 
and  were  suitable  to  his  rank  and  station.  This  being 
so,  the  plaintiff's  claim  was  not  defeated  by  its  having 
been  found  in  1823  by  a  commission  that  the  Earl  "then 
was,  and  from  the  1st  of  January,  1809,  continually  had 
been  of  unsound  mind,  not  sufficient  for  the  govern- 
ment of  himself." 

Two  propositions  seem  clear: — 

(1.)  A  lunatic  is  never  liable  on  an  executory  contract,  even  for  Executory 
necessaries.     But  the  better  opinion  is  that  such  a  contract  is  not  contracts. 
void  but  voidable,  so  that,  ii'  the  man  gets  better,  he  may  con- 
firm it  (o). 

(2.)  A  lunatic  is  sometimes  liable  on  executed  contracts.  He  is  Executed 
liable  on  executed  contracts  for  nece, varies  for  his  wife  as  well  as  contracts. 
for  himself  (p),  if  no  advantage  has  been  taken  of  him,  even 
though  the  person  supplying  them  was  aware  of  his  condition. 
But  he  is  also  liable  on  all  fair  and  bond  fide  executed  contracts 
in  the  ordinary  course  of  life  {e.g.,  for  the  sale  of  an  annuity) 
when  the  other  contracting  party  believed  himself  to  be  dealing 
with  a  sane  man  and  the  transaction  has  gone  so  far  that  the 
status  quo  ante  cannot  be  restored  (q). 

Mere  delusions  with  regard  to  the  subject-matter  of  it  will  not  Delusions, 
in  themselves  be  sufficient  reason  for  setting  a  contract  aside. 
Thus,  it  has  been  held  that  a  lease  of  a  farm  may  be  valid  though 
the  lessor  laboured  under  the  fancy  that  it  was  impregnated  with 
sulphur  (r).  "Although  a  man,"  said  Jessel,  M.  R.,  "may  be- 
lieve a  farm  to  be  impregnated  with  sulphur  and  not  fit  for  himself 
to  live  in,  he  may  still  be  a  shrewd  man  of  business,  and  may 
even  believe  that  the  other  side  may  not  know  of  the  impregna- 
tion of  the  farm  with  the  sulphur,  and  that  in  consequence  he 
may  get  a  higher  price  for  it  than  if  it  was  known  that  it  was  so 
impregnated.  He  may  have  been  perfectly  right  in  his  conclu- 
sion upon  that  subject,  and  the  jury  may  have  thought  that  it 
was  so." 

Persons  drunk  are  in  the  same  position  as  lunatics  with  regard  Drink, 
to  the  capacity  of  contracting. 

A  person  is  not  bound  by  a  contract  which  he  has  entered  into  j)uress 
tinder  duress,  and  he  may  recover  what  he  had  paid  under  duress. 

(o)  Matthews  v.  Baxter,  L.  R.  J.,  In  re  Weaver,  sup.,  at  p.  620. 
8  Ex.  132,  and  see  In  re  Weaver,         (5)  Molton  v.  Camroux,  4  Ex. 

21  Ch.  Div.  615.  17. 

(p)  Read  v.  Legard,  6  Exch.         (r)  Jenkins  v.  Morris,  14  Ch. 

Rep.  636.  But  see  per  Brett,  L.  Div.  674. 


170  CONTRACTS    OF   LUNATICS. 

It  would  appear  that  it  is  not  now  necessary  for  the  avoidance 
of  a  transaction  on  this  ground  that  the  duress  should  he  of  a 
physical  kind,  or  addressed  immediately  to  the  person  professing 
t<> contract.  "I  think  it  must  be  regarded  as  the  law."  said  Den- 
man,  J.,  in  a  recent  case  (.s),  "that  if  a  man  asserts  to  the  father 
of  a  debtor  that  his  son  is  liable  to  a  criminal  prosecution,  and 
the  father  is  led  by  reason  of  that  assertion  to  suppose  that  the 
fact  is  so.  and  by  reason  of  that  belief  is  led  to  give  a  promis- 
sory note,  or  to  bind  himself  for  the  payment  of  a  composition 
by  the  son,  then  in  that  case  the  transaction  is  not  a  fair  one.  It 
is  not  to  be  looked  at  as  a  voluntary  act,  but  as  a  case  of  extortion,, 
whether  the  facts  are  in  accord  with  the  assertion  or  not." 


[72.] 


Contracts  of  Corporations  and  Appropriation 
of  Payments. 


ARNOLD  r.  MAYOR   OF   POOLE. 
[4  M.  &  Gr.  860  (1842).] 

Arnold  was  a  solictor,  and  did  some  work  for  the 
Poole  corporation.  But  though  the  corporation  had 
passed  a  resolution  directing  the  work  to  be  done,  and 
though  they  knew  perfectly  well  of  its  progress,  yet 
wheD  the  time  came  to  pay  they  absolutely  declined  to 
do  so,  successfully  sheltering  themselves  under  the  de- 
fence that  the  contracts  of  a  corporation  are  not  bind- 
ing unless  made  under  its  corporate  seal. 


[73.]  CLARKE  v.  THE  CUCKFIELD  UNION. 

[21  L.  J.,  Q.  B.,  349  (1852).] 

At  a  regular  constituted  meeting  of    the  Board  of 
Guardians,  an  order  was  given  to  Mr.  Clarke  to  put  up 

(s)  Seear  v.  Cohen,  45  L.  T.,     Bayley,  14  L.  T.,  N.  S.  802. 
N.  S.  589;  and  see  Williams  v. 


CONTRACTS  OF  CORPORATIONS.  177 

some  water-closets  in  the  workhouse,  and  this  order  Mr. 
Clarke  forthwith  proceeded  to  execute.  When,  however, 
the  work  was  finished,  the  guardians  refused  to  pay  for 
it,  defending  themselves  on  the  technical  ground  that 
there  was  no  contract  under  seal.  But  it  was  held  that 
sealing  was  unnecessary,  as  the  purposes  for  which  the ' 
guardians  were  incorporated  obliged  them  to  provide 
water-closets;  and,  besides,  the  contract  was  an  executed 
one,  and  it  would  be  the  height  of  injustice  that  the 
corporation  should  keep  the  benefit  of  the  contract 
while  it  impunged  its  validity. 

The  contract  of  a  corporation  aggregate  requires  a  seal.     To  Corporation 
this  rule,  however,  there  are  exceptions  lor  the  sake  of  conveni-  may  some- 
ence.     Matters  of  trifling  importance,   daily   occurrence,   or   urgent  "mes  f'on" 
necessity,  may  be   contracted  for  without  seal  (t).     An  inferior       i 
servant,  for  instance,  may  be  eugaged  by  parol;  and  in  a  recent 
case  it  was  held  that  the  Hull  corporation  might  make  agree- 
ments for  the  admission  of  ships  into  their  docks  without  any 
sealing   being  necessary  (u).     Moreover,  when  a  company  is  in-  Trading  com- 
corporated  for  trading  purposes,  it  may  make  all  such  contracts  as  pany. 
are  of  ordinary  occurrence  in  that  trade,  irrespective  of  the  mag- 
nitude of  the  particular  transaction,  without  seal  (x).     But  it  has 
been  held  that  a  copper  company  cannot  sue  on  a  contract  not  un- 
der seal  to  buy  iron  rails  from  them  (y). 

Contracts  on  behalf  of  a  joint  stock  company  registered  under 
25  &  26  Vict.  c.  89  (the  Companies'  Act,  1862),  may  now,  by 
virtue  of  30  &  31  Vict.  c.  131,  s.  37,  be  generally  made  without 
seal. 

Clarke  v.  Cuckfield  was  followed  in  Nicholson  v.  The  Bradfield 
Union  (z),  which  was  an  action  for  the  price  of  coals  supplied  to  Coals  for 
guardians  for  the  use  of  their  workhouse.  "  The  goods  in  the  workhouse, 
present  case,"  said  Blackburn,  J.,  "  have  actually  been  supplied 
to  and  accepted  by  the  corporation.  They  were  such  as  must 
necessarily  be  from  time  to  time  supplied  for  the  very  purpose 
for  which  the  body  was  incorporated,  and  they  were  supplied 
under  a  contract,  in  fact,  made  by  the  managing  body  of  the  cor- 
poration. If  the  defendants  had  been  an  unincorporated  body, 
nothing  would  have  remained  but  the  duty  to  pay  for  them.     We 

(/)  Ludlow  v.  Charlton,  6  M.  (x)  South  of  Ireland  Colliery 

&  W.  815;  and  Church  v.  Imp.  Co.  v.  Waddle,  L.  R.  4  C.P.  617. 

Gas  Co.,  6  A.  &  E.  846.  (y)  Copper  Miners  Co.  v.  Fox, 

(u)  Wells   v.  Kingston-upon-  16  Q.  B.  229. 

Hull,  L.  K.  10  C.  P.  402.  (z)  L.  R.  1  Q.  B.  620. 


ITS 


CONTRACTS    OF   CORPORATIONS. 


think  that  the  body  corporate  cannot  under  such  circumstances 
escape  from  fulfilling  that  duty  merely  because  the  contract  was 
not  under  seal." 

So  it  would  serin  that  when  a  corporation  has  entirely  performed 
its  part  of  a  simple  contract,  it  may  sue  the  other  party  for  non- 
performance of  his  part.  Tims,  a  corporation,  it  has  been  held, 
can  sue  a  tenant  who  has  occupied  their  lands  without  deed  lor 
use  and  occupation  (a). 
|r„nt  (.  But  when  a  statute  constituting  a  corporation  provides,that  its 

Wimbledon  contracts  shall  he  made  with  scaling,  a  contract  is  void  unless  so 
Local  Board,  made,  and,  though  work  has  been  done,  it  need  not  be  paid  for. 
Under  section  174,  of  the  Public  Health  Act,  1875(6),  ""every 
contract  made  by  an  urban  authority  whereof  the  value  or  amount 
exceeds  £50  shall  be  in  writing,  and  sealed  with  the  common 
seal  of  such  authority."*  The  Wimbledon  Local  Board  enjoysthe 
distinction  of  having  provided  the  first  case  on  the  construction 
of  this  section  (c).  They  verbally  directed  their  surveyor  to  em- 
ploy a  Mr.  Hunt  to  prepare  plans  for  new  offices.  When  the 
plans  were  finished,  they  were  submitted  to  the  Board  and  ap- 
proved by  them;  but  the  proposed  offices  were  never  built.  The 
value  of  the  plans  was  about  ,£90,  and  Hunt  tried  in  an  action 
to  make  the  local  Board  pay  that  amount  to  him.  In  this  at- 
tempt, however,  he  failed.  "Even  independently  of  the  statute, " 
said  Brett,  L.J.,  ''I  am  of  opinion  that  the  plaintiff  cannot  re- 
cover. But  I  am  further  of  opinion  that  the  statute  in  this  case 
is  conclusive;  and  it  seems  to  me  that  the  statute  is  clearly  more 
than  directory.  It  is  what  has  been  called  mandatory.  It  pre- 
vents certain  contracts  from  being  valid  in  any  way,  and  the  real 
meaning  of  the  section  seems  to  be  this  :  the  Legislature,  know- 
ing of  the  exceptions  which  existed  at  the  time  the  statute  was 
passed  with  regard  to  small  contracts  of  frequent  occurrence 
which  are  necessary  for  the  carrying  on  of  the  business  of  the 
corporation,  intended  to  get  rid  of  any  discussion  as  to  what  were, 
small  matters,  and  to  say  that  contracts  which  the  board  Avould 
not  otherwise  be  authorised  to  make  might  be  made  for  amounts 
less  than  £50; — that  is  to  say,  that  if  they  were  necessary,  and 
under  £50,  they  should  be  brought  within  the  recognised  excep- 
tion as  to  small  matters,  and  that,  if  they  were  over  £50,  the  mere 
fact  of  their  being  over  £50  would  prevent  their  coming  within 
the  exception." 
Young  r.  Hunt   r.  Wimbledon  Local  Board  was  followed  in  the  case  of 

Leamington.   Young  t\  The  Mayor  of  Leamington  (d),  where  it  was  held  that 


(a)  Stafford  v.  Till,  4  Bing. 
7o;  and  see  Fishmongers'  Co.r. 
Robertson,  5  M.  &  G.  192;  and 
Kidderminster  v.  Hardwick,  L. 
R.  9  Ex.  13. 

(6)  38  &  30  Yict.  c.  55. 


(c)  Hunt  v.  Wimbledon  Local 
Board,  4  C.  P.  D.  48. 

(d)  8  App.  Ca.  517,  and  see 
Phelps  v.  Upton  Knodsbury 
Highway  Board,  49  J.  P.  408. 


CONTRACTS  OF  CORPORATIONS.  179 

a  municipal  corporation,  acting  as  an  urban  sanitary  authority, 
were  not  bound  to  pay  for  works  executed  for  them,  and  of  which 
they  had  obtained  the  full  benefit,  simply  because  there  was  no 
contract  under  seal  as  required  by  sec.  174.  But  in  another  re- 
cent case  (e)  in  which  a  doctor  had  agreed  to  attend  a  number  of  Scarlet  fever 
scarlet  fever  patients  in  an  encampment  outside  the  town  of  at  Grantham. 
Grantham  at  the  rate  of  5s.  3d.  per  tent  per  day,  and  had  at  tended 
till  the  amount  due  to  him  was  nearly  £100,  it  has  been  held  that 
the  section  applies  only  to  a  contract  where,  at  the  time  of  entering  into 
it,  the. parties  contemplate  (he  "value  or  amount"  as  exceeding  £50. 
"In  Hunt  v.  Wimbledon  Local  Board,"  said  Lush,  L.  J.,  "It 
must  be  taken  that  it  was  known  by  all  parties  that  the  plans 
would  cost  more  than  £50.  In  the  present  case  it  was  not  known, 
at  the  time  when  the  contract  was  entered  into,  how  long  it  would 
be  necessary  to  employ  the  plaintiff  as  a  medical  man,  or  how 
much  his  charges  might  amount  to.  His  employment  depended 
upon  the  continuance  of  the  outbreak  of  fever." 

In  Mellis  v.  Shirley  Local  Board  (14  Q.  B.  D.  911),  the  plain-  The  Shirley 
tiffs  were  employed  as  engineers  to  construct  works  for  draining  case, 
the  defendants'  district,  and  the  contract  entered  into  certainly 
fell  within  section  174.  After  doing  work  exceeding  £50  in  value 
the  plaintiffs  induced  the  defendants  to  affix  their  seal  to  the 
contract  which  had  till  then  not  been  done.  Mr.  Justice  Cave 
held  that  part  of  the  work  being  unperformed  when  the  seal  was 
affixed,  and  consideration  being  present,  the  plaintiffs  might  sue 
and  recover.  The  Court  of  Appeal  (34  W.  E.  187),  in  dealing 
with  another  point  raised  in  this  case,  reversed  the  decision  of 
Cave,  J.,  but  did  not  express  any  opinion  upon  his  construction 
of  section  174. 

In  Scott  v.  Clifton  School  Board  (/),  the  plaintiff,  who  had  been  •phc  Clifton 
appointed  architect  of  the  board,  was  held  entitled  under  the  School  Board 
provisions  of  33  &  34  Vict.  c.  75  (the  Elementary  Education  Act,  case. 
1870),  to  recover  payment  for  services  notwithstanding  that  the 
appointment  and  orders  were  not  under  seal.  "The  plaintiff," 
said  Mathew,  J.,  "was  duly  appointed  architect  to  the  board  un- 
der a  minute  signed  by  the  chairman  of  the  board,  and  commu- 
nicated to  the  plaintiff  by  the  clerk  of  the  board,  and  the  subse- 
quent orders  for  the  execution  of  the  plans  were  given  by  minutes 
of  the  board  properly  signed  and  communicated  in  a  similar  man- 
ner. It  was  contended  for  the  defendants  that  an  architect  was 
not  such  an  officer  of  the  board  as  was  contemplated  by  the  reg- 
ulation, inasmuch  as  it  could  not  be  supposed  that  his  services 
were  intended  to  be  more  than  temporary.  I  cannot  adopt  this 
construction.  By  the  terms  of  the  minute  the  plaintiff  was  ap- 
tion  of  the  schools  in  the  Clifton  district  his  duties  might  not 
pointed  the  architect  of  the  board,  and  although  after  the  erec- 

(e)  Eaton  v.  Basker,  7  Q.  B.     Gaskill,  31  W.  R.  135. 
D.  529,   and   see   Att.-Gen.    v.         (/)  14  Q.  B.  D.  500. 


180 


CONTRACTS    OF    CORPORATIONS. 


Appropria- 
tion of  pay- 
ments. 


bo  onerous,  there  was  no  reason  to  suppose  that  it  was  intended 
t hut  he  should  not  continue  to  act  whenever  his  services  were 
necessary.  Further,  the  regulation  is  intended  to  he  one  of  gen- 
eral application,  and  in  large  towns  were  there  were  many  schools 
thru-  might  well  be  the  necessity  for  the  appointment  of  an  archi- 
tect as  a  permanent  official  of  the  board." 

i  Arnold  \.  Poole  maybe  usefully  remembered  as  an  authority 
on  the  subject  of  appropriation  of  payments. 

(1.)  When  a  man  owes  another  a  number  of  different  debts,  and 
makes  a  payment,  he  has  the  right  to  apply  it  to  any  of  the  debts 
he  pleases.  The  appropriation  may  be  implied  as  well  as  express; 
and  the  debtor  will  be  presumed  to  have  intended  to  make  his 
payment  in  the  manner  most  beneficial  to  himself  (g). 

(2.)  If  the  debtor  fails  to  specify  the  particular  debt  he  is  pay- 
ing, the  creditor  may  appropriate  the  payment  to  any  debt  he 
pleases,  even  to  one  for  which  (because,  for  instance,  barred  by 
the  Statute  of  Limitations,  or,  as  in  Arnold's  case,  due  in  vir- 
tue of  a  contract  which  ought  to  have  been  under  seal  and  is 
not)  he  could  not  successfully  maintain  an  action  (/*).  The  ap- 
propriation need  not  be  at  the  time  of  payment:  any  time  before 
trial  will  do;  and  the  creditor  will  not  be  estopped  even  by  an  en- 
try in  his  own  books,  if  he  has  not  given  the  debtor  notiae  of  it  ( i). 

(3.)  If  appropriation  is  mail  n<  ither  by  debtor  nor  creditor,  the 
law  generally  appropriates  the  payment  to  the  earliest  debt,  com- 
mencing with  the  liquidation  of  any  interest  that  may  be  due  (k). 
But  if  there  are  two  debt's,  one  lawful  and  the  other  not,  the 
money  will  go  to  the  settlement  of  the  lawful  one  (?). 


Life  Insurance. 


[74.] 


HEBDON  v.  WEST. 
[3B.  &S.  549  (1863).] 


This  was  an  action  against  an  insurance  society.   The 
plaintiff  had  been  for  many  years  a  clerk  in  a  bank  at 


(g)  Shaw  r.  Picton,  4  B.  &  C. 
715:  ///  rt  Matthew,  12  Q.  B.  D. 
506. 

(/()  Phil  pott  v.  Jones,  2  A.  & 
E.  41;  Mills  v.  Fowkes. 5  Bing. 
N.  C.  455;  and  Nash  v.  Hodgson, 
6  D.  M.  &  (i.  474 :  but  see  Lamp- 
rell  v.  Billericay  Union,  3  Ex. 
283. 


(i)  Simpson  v.  Ingham,  2  B. 
&  C.  65. 

{k)  Clayton's  case,  1  Mer.  606, 
but  see  London  and  County 
Banking  Co.  v.  Terrv,  25  Ch. 
Div.  692. 

(/)  Wright  r.  Laing,  3  B  &  C. 
165. 


LIFE    INSURANCE.  181 

Preston,  and  had  proved  very  useful  to  his  employers, 
of  whom  a  gentleman  named  Pedder  was  the  senior 
and  managing  partner.  Pedder  was  much  pleased 
with  the  man,  and  promised  him  two  things — one,  that 
be  would  not,  during  his  life,  enforce  payment  of  a 
debt  of  £4000  or  £5000  which  Hebdon  owed  the  bank, 
and  the  other,  that  he  would  pay  him  an  increased 
salary  of  £600  a  year  during  the  next  seven  years. 
Careful  man  that  he  was,  Hebdon  obtained  Pedder's 
permission  to  insure  the  latter's  life  in  respect  of  these 
promises,  and  the  chief  question' now  was  whether  the 
insured  had  such  a  pecuniary  interest  in  Pedder's  life  as 
to  satisfy  14  Geo.  III.  c.  48.  It  was  held  that  in  re- 
spect of  the  £600  a  year  salary  he  had,  but  not  in  re- 
spect of  the  other  promise.  It  was  held  also  that  a 
person  cannot  recover  from  an  insurance  company 
more  than  the  amount  of  his  insurable  interest  in  the 
life  of  the  person  insured. 


DALBY  v.  INDIA  AND  LONDON  LIFE  [75.] 

INSURANCE  CO. 

[15  C.  B.  3G5  (1854).] 

The  effect  of  this  case  is  to  overrule  Godsall  v.  Bol- 
dero  (m),  and  to  decide  that  a  contract  of  life  insur- 
ance is  not,  like  that  of  fire  or  marine  insurance,  a  con- 
tract of  indemnity  merely,  but  entitles  the  assured  to 
receive  the  exact  sum  for  which  he  has  insured,  no 
matter  how  much  in  excess  of  his  real  loss  it  may  be. 

14  Geo.  III.  c.  48,   s.  1,  provides  that  no  insurance  shall  be  Necessity  ior 
made  by  any  person  on  the  life  of  another,  unless  the  person  for  "  interest." 
whose  sake  the  policy  is  made  has  an  interest  in  that  life. 

What  then  is  an  "  interest?" 

In  the  first  place,  a  man  is  presumed  to  have  an  interest  in  his  -yy^o  ]]ag 
own  life.     But,  on  the  other  hand,  if  it  can  be  shown  that  he  is  "  interest." 

(m)  9  East,  72.  See  some  interesting  remarks  of  Lord  Black- 
burn's on  this  case  in  Burnand  v.  Kodocanachi,  7  App.  Ca.  340. 


182 


LIFE    INSURANCE. 


( Ireditor. 


<  'cstui  que 
trust. 

1 1  usband  and 

wile. 


Father. 


Name. 


Time  at 

which  inter- 
est must 
exist. 


Assignment 
of  life  policy. 


insuring  his  life  with  another  person's  money,  and  for  that 
other's  benefit,  the  policy  will  he  void,  for  it  is  then  nothing 
better  than  an  attempt  to  evade  the  statute  (»)•  A  creditor  may 
insure  his  debtor's  life,  and,  even  though  the  debt  is  afterwards 
paid,  may  recover  the  money  from  the  insurance  office  (o).  A 
cestui  que  trust  may  insure  the  life  of  his  trustee  (})),  and  a  wife 
her  husband's  (</).  A  husband  is  not  presumed  to  have  such  an 
interest  in  his  wife's  life.  The  "Married  "Women's  Property 
Act,  1882"  (/■),  gives  power  to  a  married  woman  to  effect  a  policy 
tin  her  own  or  her  husband's  life  for  her  separate  use,  and  pro- 
vides that,  if  a  husband  insures  his  life  in  a  policy  expressed  on 
the  face  of  it  to  be  for  the  benefit  of  his  family,  it  shall  create  a 
trust  for  them.  But,  generally,  the  interest  required  by  the 
statute  is  a  pecuniary  interest;  and  therefore  an  insurance  by  a 
lather  in  his  own  name  on  the  life  of  his  son,  he  having  no  pecu- 
niary interest  in  the  continuance  of  it,  is  void  (s). 

The  name  of  the  party  interested  must  be  inserted  in  the  jxd- 

icy  (/)• 

The  time  at  which  the  required  interest  must  exist  is  the  time  of 
(In  <  ntt  ring  into  the  contract.  It  may  have  only  ceased  at  the  time 
of  the  death,  but  the  insurance  office  will  nevertheless  be  bound 
to  pay  the  money,  for,  as  already  stated,  life  insurance  is  not  a 
mere  contract  of  indemnity.  But,  as  we  have  also  seen  already,  a 
man  cannot  recover  more  than  the  amount  of  his  insurable  in- 
terest at  the  time  of  the  contract.  He  could  not,  for  instance, 
insure  with  half  a  dozen  different  offices  and  recover  the  money 
from  all  of  them.  This  is  the  effect  of  the  construction  placed  by 
Ihbdon  v.  West  on  sect.  ?>  of  14  Geo.  Ill  c.  48. 

A  life  policy  may  be  assigned,  either  by  indorsement  or  by  a 
separate  instrument,  and  the  assignee  may  sue  in  his  own  name 
without  showing  any  interest  of  his  own;  but  a  written  notice 
of  the  assignment  must  be  given  to  the  insurance  company  (u). 
In  the  recent  case  of  Newman  v.  Newman  (x)  it  was  held  that 
the  Act  which  requires  this  notice  is  intended  to  apply  only 
as  between  the  insurance  office  and  the  persons  interested  in  the 
policy,  and  does  not  affect  the  rights  of  those  persons  inter  se;  so 
that  where  a  first  incumbrancer  on  a  policy  had  not  given  such 
notice  as  prescribed  by  the  Act,  and  a  second  incumbrancer  with 


(n)  AVainwright  r.  Bland,  1 
M.  &  W.  32,  and  Shilling  v. 
Accidental  Death  Ins.  Co.  2  II. 
&  N.  42. 

(o)  Anderson  v.  Edie,  2  Park 
Ins.  914. 

{)>)  Collett  r.  Morrison,  9 
Hare,  162. 

(q)  Peed  v.  Pov.  Exch.  Co., 
Peake  Add.  Ca.  70. 


0)  45  &  46  Vict.  c.  75,  s.  11. 
re-enacting  ISIi  &  34  Yict.  c.  93, 
s.  10,  and  see  as  to  this  In  re 
Soutar's  Policy  Trust,  26  Ch. 
D.  236. 

(s)  Hal  ford  v.  Kymer,  10  B. 
&  C.  724. 

(t)  14  Geo.  III.  c.  48,  s  2. 

(«)  30  &  31  Vict.  c.  144. 

(x)  28  Ch.  D.  674. 


LIFE    INSURANCE.  "J  gy 

notice  of  the  prior  change  had  given  the  statutory  notice,  it  was 
held  that  the  second  incumbrancer  did  not  thereby  obtain  pri- 
ority. 

A  person  insuring  his  life  has  usually  to  answer  a  number  of  Conditions  of 
questions  as  to  the  state  of  his  health,  the  illness  he  has  had,  life' policy. 
&c.  Jf  it  is  made  a  condition  of  the  policy  that  those  questions 
shall  be  answered  truly,  the  policy  will  become  void  even  for 
immaterial  and  untentional  errors  (y).  In  that  case  the  truth  of 
the  declarations  is  the  basis  of  the  policy.  If  there  is  no  such 
condition,  the  question  is  Avhether  the  concealment  or  misrepre- 
sentation was  of  a  material  fact  (z).  See  Grogan's  case,. 53  L.  T., 
N.  S.,  761. 

People  who  insure  their  lives  should  be  a  great  deal  more 
careful  than  they  are  to  look  at  the  conditions  of  a  policy  before 
signing  it.  Most  people,  it  is  believed,  would  enter  into  such  a 
contract  without  noticing  that  they  were  never  to  play  a  game  at 
lawn-tennis,  or  run  over  to  Paris  for  a  few  days,  or  join  the  vol- 
unteers, or  the  Salvation  Army,  without  the  leave  of  the  office. 
A  common  condition  in  a  policy  is  that  it  shall  become  void  in 
the  event  of  the  insured  committing  suicide.  As  such  a  cond- 
tion  (according  to  the  more  accepted  opinion)  covers  suicide 
while  in  a  state  of  insanity  (a),  and  as  insanity  is  a  disease  from 
which  even  the  most  gifted  are  not  exempt  any  more  than  they 
are  from  colds  or  fevers,  a  wise  man  will  draw  his  pen  through 
it. 

This  branch  of  the  subject  is  well  illustrated  by  the  recent 
cases  of  Winspear  v.  Accident  Insurance  Co.  (b),  and  Lawrence 
r.  Accidental  Insurance  Co.  (c).  In  the  former  case,  a  man  had  "vVinsnear's 
effected  an  insurance  against  death  by  accidental  injury,  but  the  case. 
policy  contained  a  proviso  that  the  insurance  should  not  extend 
"to  any  injury  mused  by  or  arising  from  natural  disease  or  weakness 
or  exhaustion  consequent  on  disease.'"  During  the  time  this  policy 
was  in  force,  the  insured,  whilst  crossing  the  river  at  Edgbaston, 
was  seized  with  an  epileptic  tit,  and  fell  into  the  water  and  was 
drowned.  It  was  held  that  the  executrix  could  recover  on  the 
policy,  in  spite  of  the  proviso.     In  the  other  case,  a  man  who  , 

had  effected  a  policy  with  much  the  same  kind  of  proviso  was  Lawrence  s 
taken  ill  on  the  platform  at  Waterloo  and  fell  in  a  fit  on  to  the 
line,  where  an  engine  passed  ovei  and  killed  him.     On  the  au- 
thority of  Winspear's  case,  it  was  held  that  the  insurance  com- 
pany were  not  protected  by  their  proviso.     '"We  must  look," 

(y)  Anderson  v.  Fitzgerald,  4  great  names  of  Pollock,  Wight- 

H.  L.  C.  507,  and  Thomson  v.  man,    Cresswell,    Tindall,    Ers- 

Weems,  9  App.  Cas.  671.  kine,     Alexander,     Tenterden, 

(z)  London  Assurance  Co.  v.  and    St.     Leonards     might    be 

Mansel,  L.  R.  11  Ch.  D.  363.  cited  in  support  of  the  contrary 

(a)  Clift  v.  Schwabe,  3  C.  B.  view  which,  it  is  submitted,  is 

437,  and  see  Borradaile  v.  Hun-  far  more  consistent  with  coni- 

ter,  5  M.  &  G.  639.     It  may  be  mon  sense, 

doubted,      however,      whether  (b)  6  Q.  B.  D.  42. 

such   is   really  the   law.     The  (c)  7  Q.  B.  D.  216. 


case. 


184 


LIFE    INSURANCE. 


Premiums 
not  paid. 


Leslie  v. 
French. 


said  Watkin  Williams,  J.,  ''at  only  the  immediate  and  proxi- 
mate cause  of  death,  and  it  seems  to  me  to  be  impracticable  to 
go  back  to  cause  upon  cause,  which  would  lead  us  back  ulti- 
mately to  the  birth  of  the  person,  for,  if  he  had  never  been  born, 
the  accident  would  not  have  happened." 

Independently  of  conditions,  a  policy  is  vitiated  by  felonious 
suicide,  being  killed  in  a  duel,  or  being  executed  (d);  as  also  by 
fraudulent  misrepresentation  or  concealment  of  material  facts  at 
the  time  of  effecting  the  policy. 

If  the  premium  is  not  paid  in  the  stipulated  manner,  the  policy 
will  become  void.  By  receiving  premiums,  however,  with  full 
knowledge  of  the  breach,  the  insurers  will  be  deemed  to  have 
waived  the  forfeiture  (e). 

In  Leslie  V.  French  (/)  it  was  held  that  when  a  person,  not- 
the  sole  beneficial  owner,  pays  the  premiums  to  keep  up  a  policy 
of  life  insurance,  he  is  entitled  to  a  lien  on  the  policy  or  its  pro- 
ceeds in  the  following  cases: — 

(1.)  By  contract  with  the  beneficial  owner. 

(2.)  By  reason  of  the  right  of  trustees  to  an  indemnity  out  of 
their  trust  property  for  money  expended  by  them  in  its  preserva- 
tion. 

(3.)  By  subrogation  to  their  right  of  some  person  who  at  the 
request  of  trustees  has  advanced  money  for  the  preservation  of 
the  property;  and 

(4.)  By  reason  of  the  right  of  a  mortgagee  to  add  to  his  charge 
any  money  paid  by  him  to  preserve  the  property. 

In  no  other  cases  can  a  lien  on  a  policy  for  premiums  paid  be 
•  acquired  either  by  a  stranger  or  by  a  part  owner  of  the  policy. 


Fire  Insurance. 


[76.] 


DARRELL  v.  TIBBITTS. 
[5  Q.  B.  I).  560  (1880).] 


A  steam  roller  of  the  Brighton  Corporation's  was  so 
heavy  that  it  broke  the  gas  pipes  in  a  street,  and  caused 
an  explosion  in  one  of  the  houses.     The  tenants  of  the 


{(J)  Amicable  Society  v.  Bol- 
land,  4  Bligh.  194. 

(e)  Wing  v.  Harvev,  5  De  G. 
M.  &  G.  265.  See  also  the  re- 
cent case  of  Canning  v.  Farqu- 
har,  34  W.  R.  423  L.  J.  N., 
March  20th,  1880,  where  a  man 


had  died  after  the  acceptance  of 
his  proposal,  but  before  tender 
of  the  premium,  and  it  was  held 
that  the  assurers  need  not  grant 
a  policv. 

(  f)  23  Ch.  D.  552.  and  see  In 
re  thorp,  2  Sm.  &  Giff.  578,  n. 


FIRE    INSURANCE.  185 

house  got  compensation  from  the  Corporation  for  dam- 
age so  done  and  repaired  the  premises,  as  they  were 
bound  to  do  by  the  terms  of  their  lease.  But  it  hap- 
pened that  the  landlord  had  insured  the  houso  with  the 
plaintiffs  by  a  policy  against  tire  covering  injury  by  gas 
explosion,  and  the  plaintiffs,  unaware  that  by  the  terms 
of  the  lease  the  lessees  were  bound  to  make  good  inju- 
ries done  by  an  explosion  of  gas,  paid  the  policy  money. 
But  when  they  heard  that  the  tenants  had  put  the  house 
all  right  again,  they  claimed  a  return  of  their  money  ; 
and  they  were  held  to  be  entitled  to  it,  because  a  policy 
of  fire  insurance  is  a  contract  of  indemnity.  As  was 
remarked  by  Brett,  L.J.,  if  the  plaintiffs  could  not  re- 
cover the  money  back,  "the  whole  doctrine  of  indem- 
nity would  be  done  away  with;  the  landlord  would  be 
not  merely  indemnified^  he  would  be  paid  twice  over." 

The  person  who  effects  an  insurance  against  fire  must  have  an  Necessity  for 
interest  in  the  property  insured,  and  he  cannot  recover  beyond  nis  "  interest." 
interest.     It  is  his  duty,  when  effecting  the  insurance,  to  com-  ^ommunica- 
municate  to  the  insurers,  all  material  facts  (g)  ;  and  it  is  an  im-  fgrial  f.icts 
plied  condition  that  his  description  of  the  property  is  accurate  (g).  Alteration  of 
It  is  also  an  implied  condition  when  a  house  is  insured,  that  it  premises. 
shall  not  be  altered  so  as  to  increase  the  risk  (It).     When  a  build-  {  Ire^  1U 
ing  in  the  metropolitan  district  is  burnt  down,  any  person  inter- 
ested may  require  the  insurance  money  to  be  laid  out  in  repair- 
ing or  rebuilding  the  structure  (/). 

In  the  recent  case  of  Castellian  v.  Preston  (k),  a  vendor  had  Castellaiu  v. 
contracted  with  a  purchaser  for  the  sale,  at  a  specified  sum,  of  a  Preston, 
house  at  Liverpool,  which  had  been  insured  by  the  vendor  with 
an  insurance  company  against  fire.  The' contract  contained  no 
reference  to  the  insurance.  After  the  date  of  the  contract,  but 
before  the  date  fixed  for  completion,  the  house  was  damaged  by 
fire,  and  the  vendor  received  the  insurance  money  from  the  com- 
pany. The  purchase  was  afterwards  completed,  and  the  pur- 
chase money  agreed  upon,  without  any  abatement  on  account  of 
the  damage  by  fire,  was  paid  to  the  vendor.     In  an  action  by  the 

(g)  Bufe  v.  Turner,.  6  Taunt.         (?)  14  Geo.  III.,  c.  78,  s.  83  ; 

338  ;  and  see  Lindenau  v.  Des-  and  see  recent  case  of  Anderson 

borough,  8  B.  &  C.  586.  v.  Commercial  Union  Assurance 

(h)  Sillem  v.  Thornton,  3  E.  Co.,  55  L.  J.,  Q.  B.  D.  146. 
&  B.  882.  (k)  11  Q.  B.  D.  380. 


186 


FIRE    INSURANCE. 


Midland 
Insurance 
Company  v. 
Smith. 


company  against  the  vendor,  it  was  held  that  the  company  were 
entitled  to  recover  a  sum  equal  to  the  insurance  money  from  the 
vendor  for  their  own  benefit.  "Darrell  v.  Tibbitts,^  said  Brett. 
L.J.,  ''seems  to  me  to  he  entirely  in  favour  of  the  plaintiff  in 
this  case.  I  shall  not  retract  from  the  very  terms  which  I  nsed 
in  that  case.  It  seems  to  me  that  in  Darrell  v.  Tibbitts  the  in- 
surers were  not  subrogated  to  a  right  of  action  or  to  a  remedy. 
They  were  not  subrogated  to  a  right  to  enforce  the  remedy,  but 
what  they  were  subrogated  into  was  the  right  to  receive  the  ad- 
vantage of  the  remedy  which  had  been  applied,  whether  it  had 
been  enforced  or  voluntarily  administered  by  the  person  who 

was  bound  to  administer  it The  contract  in  the 

present  case,  as  it  seems  to  me,  does  enable  the  assured  to  be  put 
by  the  third  party  into  as  good  a  position  as  if  the  fire  had  not 
happened,  and  that  result  arises  from  the  contract  alone.  There- 
fore, according  to  the  true  principles  of  insurance  law,  and  in  or- 
der to  carry  out  the  fundamental  doctrine,  namely  that  the  as- 
sured can  recover  a  full  indemnity,  but  shall  never  recover  more, 
except  perhaps  in  the  case  of  the  serving  and  laboring  classes  un- 
der certain  circumstances,  it  is  necessary  that  the  plaintiff  in  this 
case  should  succeed.  The  case  of  Darrell  v.  Tibbitts  has  cut  away 
every  technicality  which  would  prevent  a  sound  decision.  The 
doctrine  of  subrogation  must  be  carried  out  to  the  full  extent,  and 
carried  out  in  this  case  by  enabling  the  plaintiff  to  recover." 
"  On  the  principle  of  Darrell  v.  Tibbitts,  "  said  Cotton,  L.  J.,  "  when 
the  benefits  afterwards  accrued  by  the  completion  of  the  pur- 
chase the  insurance  company  were  entitled  to  demand  that  the 
money  paid  by  them  should  be  brought  into  account.  Therefore 
the  conclusion  at  which  I  have  arrived  is  that,  if  the  purchase 
money  has  been  paid  in  full,  the  insurance  company  will  get  back 
that  which  they  have  paid,  on  the  ground  that  the  subsequent 
payment  of  the  price  which  had  been  before  agreed  upon,  and  the 
contract  for  payment  of  which  was  existing  at  the  time,  must  be 
brought  into  account  by  the  assured,  because  it  diminishes  the 
loss  against  which  the  insurance  office  merely  undertook  to  in- 
demnify them."  "  The  answer  to  the  question  raised  before  us," 
said  Bowen,  L.J.,  appears  to  me  to  follow  as  a  deduction  from 
the  two  propositions,  first,  that  a  fire  insurance  is  a  contract  of 
indemnity,  and  secondly,  that  when  there  is  a  contract  of  indem- 
nity no  more  can  be  recovered  by  the  assured  than  the  amount 
of  his  loss." 

Another  recent  case  of  much  interest  is  Midland  Insurance  Co, 
v.  Smith  (I),  where  an  insurance  company  granted  a  fire  policy 
to  a  man  named  Smith,  and  during  the  currency  of  the  policy, 
Mrs.  Smith  feloniously  burnt  the  property  insured.  It  would 
appear  from  this  case  that  a  felonious  burning  by  the  wife  of  the 
assured,  without  his  privity,  is  covered  by  the  ordinary  fire  policy. 

(I)  6  Q.  B.  D.  561. 


CONCEALMENT    FROM    MARINE    INSURERS.  1 87 

It  is  a  common  covenant  in  a  lease  that  1lie  lessee  will  keen.  Forfeiture  for 
the  premises  insured.     Such  a  covenant  runs  with  the  land.      If  not  insuring. 
it  is  broken,  relief  against  the  forfeiture  will  generally  be  granted 
the  first  time  of  breaking,  where  no  loss  by  fire  has  happened, 
and  there  is  an  insurance  on  foot  at  the  time  of  the  application 
for  relief  (in). 

By  the  Metropolitan  Fire  Brigade  Act,    1865  (»),  s.   1:2,   any  Damage  done 
damage  occasioned  by  the  Metropolitan  Fire  Brigade  "in  the  due  by  Fire 
execution  of  their  duties  shall  be  deemed  to  be  damage  by  tire  Brigade. 
within  the  meaning  of  any  policy  of  insurance  against  fire." 


Concealment  from  Marine  Insurers. 

» 

CARTER  v.  BOEHM.  [77] 

[1  W.  Bl.  594  (1763).] 

The  governor  of  Fort  Marlborough,  in  the  island  of 
Sumatra  in  the  East  Indies,  came  to  the  conclusion  that 
there  was  considerable  danger  of  his  fort  being  cap- 
tured. He  therefore  wrote  to  his  brother  in  England, 
and  asked  him  to  get  the  fort  insured  for  a  year.  The 
brother  accordingly  went  to  Boehm  and  Co.,  who  in- 
sured Fort  Marlborough  against  capture  by  "a  for- 
eign enemy "  between  October  16th,  1759,  and  Octo- 
ber 16th,  1760.  In  April,  1760,  the  fort  was  captured 
by  the  French,  and  this  action  was  brought  to  recover 
the  insurance  money.  The  insurers  declined  to  pay, 
on  the  ground  that  certain  material  facts  contained  in 
two  letters  which  the  governor  had  written  to  his  brother 
in  September,  1759,  had  been  concealed  from  them.  In 
those  letters  the  governor  spoke  of  the  weakness  of  his 
fort,  and  the  probability  of  the  French  attacking  it.  It 
appeared,  however,  that  the  fort  was  little  more  than  a 

(m)  See  22  &  23  Vict.  c.  35,  Mapleson,  9  Q.  B.  D.  672. 
ss.  4  and  6,  and  see  44  &  45  (n)  28  &  29  Vict.  c.  90. 
Vict.  c.  41,  s.  14;  and  Quilterv. 


1S8 


CONCEALMENT  PROM  MARINE  INSURERS. 


factory,  being  merely  intended  for  defence  against  the 
natives,  so  that  its  iveakness  was  an  immaterial  fact  as 
regarded  the  French,  while  the  probability  of  their  at- 
tacking it  was  a  question  which  a  person  in  England 
was  in  a  better  position  to  determine  than  the  governor 
himself.  Boehm  and  Co.,  therefore,  were  ordered  to 
pay. 


What  must 
be  told. 


The  con- 
verted 
cruiser. 


What  need 
not  be  told. 


The  slip. 


On  the  principle  that  the  minds  of  the  contracting  parties  are 
not  ad  iilim,  the  concealment,  whether  wilful  or  accidental,  of  a 
material  fact  vitiates  a  policy  of  marine  insurance.  Everything 
that  can  increase  the  risk  insured  must  be  communicated  (o), 
and  it  makes  no  matter  that  the  fact  was  once  actually  known  to 
the  underwriter  if  it  was  not  present  to  his  mind  at  the  time  of 
effecting  the  insurance.  A  man  once  insured  a  merchant  ship 
with  an  insurance  office  without  telling  them  that  she  was  iden- 
tical with  a  once  well  known  and  formidable  Confederate  cruiser. 
It  was  astonishing  that  they  did  not  remember  it.  But  the  ship- 
owner's omission  to  tell  them  was  held  to  be  fatal  to  his  success 
on  the  policy  (p).  The  rule  on  the  subject  has  been  stated  in  a 
later  case  to  be  that,  while  it  would  be  too  much  to  put  on  the 
assured  the  duty  of  disclosing  everything  which  might  influence 
the  mind  of  an  underwriter,  " all  should  be  disclosed  which  would 
affect  the  judgment  of  a  rational  underwriter  governing  himself  by  the 
principles  and  calculations  on  which  iindcncriters  do  in  practice 
act  "  (q).  So  the  non-disclosure  of  the  charterers'  power  to  can- 
cel the  charter,  whereby  the  shipowners  might  lose  the  freight, 
has  been  held  to  be  an  answer  to  an  action  on  a  policy  (r).  But, 
on  the  other  hand,  the  party  effecting  the  policy  is  not  bound  to 
disclose  mere  rumours,  even  if  they  have  appeared  in  the  news- 
papers, nor  such  things  as  it  is  the  business  of  the  underwriters 
to  find  out  for  themselves,  such  as  the  usage  of  trade,  the  dangers 
of  particular  seas  and  rivers,  or  the  probabilities  of  hostilities  («). 
Nor  need  the  insured  communicate  matter  which  forms  an  in- 
gredient in  a  warranty,  e.g.,  that  of  seaworthiness  (t). 

By  mercantile  usage  the  slip,  though  not  admissible  in  evidence 
as  a  contract  («),  is  treated  as  the  contract  for  insurance.     There- 


Co)  Striblev  v.  Imp.  Mar.  Ins. 
Co.,  1  Q.  B.  D.  507. 

{p)  Bates  v.  Hewitt,  L.  E.  2 
Q.  B.  595. 

(q)  Ionides  r.  Pender,  L.  R.  9 
Q.  B.  531,  and  see  Rivaz  v.  Ge- 
russi,  6  Q.  B.  D.  222,  and  Tate 
&  Sons  v.  Hyslop,  15  Q.  B.  D. 
368. 

(r)  Mercantile  Steamship  Co. 


v.  Tyser,  7  Q.  B.  D.  73. 

(s)  Gandv  r.  Adelaide  Co.,  L. 
R.  6  Q.  B.  746;  but  see  Hanow- 
er  v.  Hutchinson,  L.  R.,  5  Q. 
B.  584. 

(7)  Haywood  v.  Rodgers,  4 
East.  590.  and  Knight  v.  Cotes- 
worth,  1  C.  &  E.  48. 

(«)  30  &  31  Vict.  c.  23,  s.  7. 


ABANDONMENT    TO    UNDERWRITERS.  189 

fore  facts  which  have  come  to  the  knowlege  of  the  assured  after 
the  slij)  is  signed,  but  before  the  policy  is  completed,  need  not  be  com- 
municated (a;).  Whether  any  particular  fact  was  "material"  or 
not,  is  a  question  for  the  jury.  The  point  is  not  free  from  doubt, 
but  probably  on  such  an  enquiry  skilled  witnesses,  having  no  interest  Opinion  of 
in  the  matter  litigated,  can  be  called  to  say  that,  if  they  had  been  expert, 
the  underwriters,  they  would  or  would  not  have  been  materially 
influenced  by  this  or  that  fact  (y). 


Abandonment  to  Underwriters. 


ROUX  v.  SALVADOR.  [78] 

[3BING.  N.  C.  286  (1836).] 

In  consequence  of  a  leak  in  the  ship  that  was  carry- 
ing them,  a  cargo  of  hides  began  to  putrefy,  and  it  be- 
came obvious  that,  as  hides,  they  would  never  reach  the 
journey's  end.  Under  these  circumstances  they  were 
sold  at  an  intermediate  port,  and  fetched  less  than  a 
fourth  of  their  value.  Happily  for  the  owner,  they 
were  insured;  and  it  was  held  that  he  could  claim  for 
a  total  loss  without  an  abandonment. 

A  total  loss  may  be  actual  or  constructive.     It  is  actual  when  no  a  0fnai  f  f.  i 
part  of  the  subject-matter  of  the  insurance  exists  in  such  a  state  i0SS- 
as  to  serve  any  useful  purpose.     There   is,  of  course,  an  actual 
total  loss  when  the  insured  ship  is  consumed  by  fire,  or  destroyed 
by  perils  of  the  sea.     But  there  is  also  an  actual  total  loss  if  it  is 
reduced  to  a  mere  wreck  or  congeries  of  planks  (z),  or  if  an  in- 
sured cargo  is  so  damaged  as  to  exist  only  in  the  shape  of  a  nui- 
sance (a).     A  constructive  total  loss  arises  whenever  the  nature  of  Constructive 
the  loss  is  such  as  to  give  reasonable  ground  to  the  assured  for  total  loss. 

(z)  Cory?'  Patton,  L.  R.  9Q.  (s)  Cambridge?'.  Anderton,  2 

B.  577, and  see  Morrison  ?\Univ.  B.  &  C.  691,  and  Levy  &  Co.  v. 

Mar.  Ins.  Co.,  L.  R.  8  Ex.  197.  The    Merchant   Marine   Insur- 

(y)  Berthon   v.  Loughman,  2  ance  Co..  1  C.  &  E.  474. 

Stark.    258,    and     Rickards  •?>.  (a)  Dyson  v.  Rowcroft,  3  B. 

Murdock,  10  B.  &   C.  527;  but  &  P.  75. 
see  Campbell  v.  Rickards,   5  B. 
&  Ad.  840. 

14   COMMON   LAW. 


190  ABANDONMENT   TO    UNDERWRITERS. 

relinquishing  the  voyage  altogether.  The  attitude  he  takes  up 
Abandon-  towards  the  underwriters  is  of  this  kind,  — "  It  is  true  my  goods 
ment.  still  exist;  hut  look  at  their  condition.     It  is  really  not  worth  my 

while  to  have  them  forwarded  to  their  destination.  My  enter- 
prise is  practically  a  failure.  I  will  have  the  policy  money,  and 
you  can  have  these  damaged  goods  to  make  what  you  can  out  of 
them."  This  is  called  abandonment,  and  is  required  by  law  as  a 
condition  of  the  assured's  claiming  for  a  constructive  total  loss. 
It  is  only  fair,  because  otherwise  he  would  be  reaping  an  undue 
benefit  from  what  is  merely  a  contract  of  indemnity.  Notice  of 
abandonment  must  be  given  within  a  reasonable  time  after  the 
assured  has  received  intelligence  of  the  loss  (ft).  An  abandon- 
ment may  be  made  orally  (c);  but  it  must  be  certain  (d),  uncon- 
ditional (e),  and  of  the  whole  thing  insured  (/).  On  the  other 
hand,  if  the  underwriter  means  to  dispute  the  matter,  he  must 
say  so  within  a  reasonable  time  after  receiving  notice  of  abandon- 
ment (</).  In  the  recent  case  of  Forwood  v.  The  North  Wales, 
&c,  Co.  (ft),  it  was.  held  that  a  constructive  total  loss  was  cov- 
ered by  a  policy  and  by-laws  confining  the  insurance  to  "absolute 
damage  caused  by  the  perils  insured  against." 

In  the  case  of  a  policy  of  re-insurance,  if  a  constructive  total 
loss  has  happened,  no  notice  of  abandonment  is  necessary  (»)• 


Return  of  Premium. 


[79.]  TYRIE  r.  FLETCHER. 

[2  Cowp.  666  (1777).] 

This  was  an  action  against  an  underwriter  for  a  return 
of  part  of  the  premium  paid  for  the  insurance  of  a  ship 
called  the  "Isabella."  The  ship  was  insured  "  at  and 
from  London  to  any  port  or  place  where  or  whatsoever 
for  twelve  months  from  the  lQth  of  August  1776  to  the 
19M  of  August  1777,  both  days  inclusive,  at  £9  per  cent. 

(ft)  Mitchell  v.  Edie,  1  T.   R.  (  f)  Park.  229. 

608.  (g)  Hudson  v.  Harrison,  3  B. 

(c)  Read  v.  Bonham,    2  B.   &     &  B.  97. 

B.  149.  (ft)  9  Q.  B.  D.  732. 

(d)  Parmeter  v.  Todhunter,  1  (i)  Uzielli  v.  Boston  Marine 
Camp.  541.  Insurance  Co.,  15  Q.  B.   D.  11. 

(e)  McMasters  v.  Shoolbred.l 
Esp.  239. 


RETURN   OF   PREMIUM.  191 

warranted  free  from  captures  and  seizures  by  the  Amer- 
icans and  the  consequences  thereof  .  The  "Isabella"  was 
captured  by  an  American  privateer  about  two  months 
after  she  had  sailed  from  London.  It  was  held  that  the 
risk  was  entire  and  had  commenced;  therefore  there 
could  be  no  return  of  premium. 

When  a  plaintiff  fails  to  establish  his  right  to  recover  on  a 
policy  of  marine  insurance,  the  question  arises  whether  he  is  en- 
titled .to  a  return  of  premium. 

Two  rules  are  clear: — 

(1.)  WJierethe  risk  has  not  been  run,  1 he  premium  will  be  returned.  Rjsfc  never 
Thus,  if  the  insured  ship  never  sailed,  or  if  the  insured  goods  commenced, 
were  never  put  on  board,  there  must  be  a  return  (k).  So  when 
only  part  of  the  goods  embraced  by  the  policy  is  put  on  board,  a 
proportionate  part  of  the  premium  must  be  returned  (/).  So  too 
the  premium  may  be  recovered  where  the  policy  is  rendered  void 
ab  initio  through  non-compliance  with  a  warranty  (m). 

(2.)  ]\7iere  the  risk  has  once  commenced,  there  can  be  no  return  of  p>isk  once 
premium.     The  well  known  case  of  Stevenson  v.  Snow  (n)  is  not  commenced, 
really  an  exception  to  this  rule.     There  the  insurance  was  from  Stevenson  v. 
London  to  Halifax,  warranted  to  depart  with  convoy  from  Ports- 
mouth.    But  when  the  ship  got  to  Portsmouth,  the  convoy  had 
gone.     It  was  held  that  there  must  be  a  part  return  of  the  pre- 
mium for  the  risk  never  incurred,  viz.,  that  of  the  voyage  from 
Portsmouth  to  Halifax.     "  There  are  two  parts,'''1  said  Lord  Mans- 
field, "in  this  contract;  and  the  premium  may  be  divided  into  two  dis- 
tinct parts,  relative,  as  it  were,  to  two  voyages." 

If  the  assured  has  been  guilty  of  fraud  (e.g.  if   he  knew  the  Fraud  and 
ship  was  lost  when  he  insured  her)  he  cannot  claim  a  return  of  illegality. 
the  premium,  even  though  the  risk  never  commenced  (o). 

So,  where  a  policy  is  illegal,  and  the  voyage  has  been  performed, 
there  can  be  ho  return,  because  in  pari  delicto  potior  est  conditio 
possidentis  (p).  But  Avhile  the  illegal  contract  remains  executory, 
there  is  a  locus  pcenitentix,  and  the  assured  may  recover  his  pre- 
mium on  formally  renouncing  and  retiring  from  the  whole  trans- 
action (</). 

Though  not  a  case  of  marine  insurance,   the  case  of  Ferns  v.  Ferns  v. 
Carr  (r),  may  be  briefly  referred  to  here.     A  Mr.  Ferns  was  in  Carr. 

(A)  Martin  v.  Sitwell,  1  Show.  (o)  Wilson  v.  Duckett,  3  Burr. 

151.  1361. 

(/)    Eyre.  r.  Glover,  16  East,  (p)  Lowry  v.  Bourdien,  Doug. 

218,  and  see  Horneyer  v.  Lush-  468. 

ington,  15  East,  46.  (q)   See  Palyart  v.  Leckie,   6 

(m)  Penson  v  Lee,  2  Bos.  &  P.  M.  &  S.  290. 

330.  (r)  28  Ch.  D.  409. 

(n)  3  Burr.  1237. 


192  RETURN    OF    PREMIUM. 

November.  1880,  bound  as  an  articled  clerk  for  five  years  to  a 
solicitor  named  Carr,  and  a  premium  of  £150  was  paid.  In  De- 
cember, 1883,  Carr  died,  leaving  no  partner  to  continue  Ferns's 
legal  education  during  tbe  remaining  two  years  of  the  articles. 
In  an  action  by  Ferns,  pater,  against  Carr's  executors,  it  was  held 
that  the  estate  was  not  liable  for  the  return  of  any  part  of  the 
premium. 


Deviation. 

[80.1  SCAEAMANGA  v.  STAMP. 

[5  C.  P.  D.  295  (1880).] 

The  defendant's  steamship  "  Olympias "  was  char- 
tered by  the  plaiDtiff  to  carry  a  cargo  of  wheat  from 
Cronstadt  to  Gibralter.  When  nine  days  out,  she  sighted 
another  steamship,  the  "Arion,"  in  distress,  her  ma- 
chinery having  completely  broken  down.  The  weather 
was  fine  and  the  sea  smooth,  so  that  the  crew  might 
easily  have  been  taken  off  and  saved;  but  the  master 
of  the  "Arion,"  anxious  to  save  his  ship  and  cargo  as 
well  as  the  lives  of  his  crew,  agreed  to  pay  the  "Olym- 
pias" £1000  to  tow  the  ship  into  the  Texel.  Accord- 
ingly the  "  Olympias  "  took  the  "Arion  "  in  tow,  and,  in 
so  deviating  from  the  ordinary  course  of  her  voyage, 
got  ashore  on  the  Terschelling  Sands,  and  with  her 
cargo  was  ultimately  lost. 

It  was  held  that,  as  it  was  not  reasonably  necessary 
to  take  the  "Arion"  to  the  Texel  in  order  to  save  the 
lives  of  those  on  board  her,  this  deviation  was  unjusti- 
fiable, and  therefore  the  plaintiff  was  entitled  to  recover 
the  value  of  his  cargo. 

Deviation  to        Those  in  peril  on  the  sea  derive  a  substantial  benefit  from  thi.s 
save  life  is       case,  which  may  be  said  to  have  distinctly  decided  that  a  deria- 
justifiable.        lion  for  (he  purpose  of  sating  life  is  justifiable,  though  a  deviation 
merely  for  the  sake  of  saving  property  is  not. 


DEVIATION.  193 

By  deviation  is  meant  a  ship's  intentional  departing  from  the  Necessity 
regular  course  of  her  journey,  and  (in  the  ahsence  of  agreement)  justilies  de- 
it  can  only  be  justified  by  overwhelming  necessity,  e.g.,  to  get  pro-  viation. 
visions,  to  avoid  capture,  to  repair  damage,  or,  according  to  the 
leading  case,  to  save  life  (s).     The  reason  of  the  rule  is  that  the 
assured  has  no  right  to  substitute  a  different  risk  (t). 

When  a  ship  deviates  unnecessarily,  its  owners  are  responsible  Consequences 
for  all  loss,  no  matter  how  arising,  that  occurs  during  the  devia-  °*  improper 
tion  («).     But  a  deviation  does  not  discharge  the  insurers  from 
liability  for  previous  loss  (x). 

Mere  intention  to  deviate  will  not  vitiate  a  policy  (y). 

Another  implied  warranty  the  breach  of  which  will  prevent  the  Seaworthi- 
insured  from  recovering  on  a  voyage-policy  is  that  of  scaworthi-  ness. 
ness.     What  is  warranted  is  not  that  the  ship  will  contin'ue,  but 
that  it  is  at  the  time  of  the  effecting  of  the  policy,  seaworthy  (z). 
The  presumption  is  that  a  ship  is  seaworthy,  but,  if  she  goes 
wrong  very  shortly  after  sailing,  the  assured  will  be  called  on  to 
show  that  it  was  from  causes  subsequent  to  the  commencement 
of  the  voyage  (a).     A  ship  is  not  seaworthy  if  there  is  not  a  com- 
petent crew  (b).     Seaworthiness,  however,  is  a  term  of  relative  Decrees  of 
import;  and  "where  the  nature  of  the  adventure,  and  the  size  seaworthi- 
and  class  of  vessel  to  be  employed,  are  known  to  both  parties,  Qess. 
the  implied  warranty  of  the  shipowner  cannot  be  carried  further 
than  that  he  shall  do  his  utmost  to  make  the  particular  vessel  as 
fit  for  the  voyage  as  she  can  possibly  be  made  "  (c).     There  is  no 
warranty  of  seaworthiness  implied  in  a  lime-policy  (d). 

In  the  recent  salvage  case  of  "The  Glenfruin  "  (dd),  Butt,  J., 
said,  "  I  have  always  understood  the  result  of  the  cases  from  Lyon 
v.  Mells,  5  East,  428,  to  Kopitoff  v.  Wilson,  1  Q.  B.  D.  377,  to  be 
that  under  his  implied  warranty  of  seaworthiness  the  shipowner 
contracts  not  merely  that  he  will  do  his  best  to  make  the  ship 
reasonably  fit,  but  that  she  shall  really  be  reasonably  fit  for  the 
voyage.  Had  those  cases  left  any  doubt  in  my  mind  it  would 
have  been  set  at  rest  by  the  observations  of  some  of  the  peers  in  the 
case  of  Steel  v.  State  Line  Steamship  Co.,  3  App.  Ca.  72." 

(.s)  See  Urquhart  v.  Barnard,         (a)  Watson  v.  Clark,  1  Dow. 

1  Taunt.  456.  344. 

(t)  See  African  Merchants  Co.         (b)  Clifford  v.    Hunter,  M.   & 

v.  an  Insurance  Co.,  L.  R.  8  Ex.  M.  103. 
154.  (c)     Add.    Contr.    (7th    ed.) 

(u)  Davis  v.  Garrett,  6  Bing.  881  ;  and  see  Burges  v.  Wick- 

710.  ham,  33  L.  J.    Q.    B.    17,  and 

(.c)  Green   v.    Young,    2   Ld.  Clapham  v.  Langton,  34  L.  J. 

Raym.  840.  Q.  B.  46. 

(y)  Kewlev  v.  Ryan,  2  H.  Bl.         (d)  Gibson  v.  Small,  4  H.  L. 

343,  and  Hare  v.  Travis,  7  B.  &  Ca.  353,  and  Dudgeon  v.   Pem- 

C.  14.  broke,  2  App.  Ca.  284. 

(z)  Dixon  v.  Sadler,  5  M.  &         (dd)  10  P.  D.  108. 
W.  414. 


194  AVERAGE. 


Average. 


[81.]  WHITECROSS  WIRE  CO.  v.  SAVILL. 

[8.  Q.  B.  D.  654  (1882).] 

The  defendants  were  the  owners  of  a  ship  called  the 
"Himalaya,"  which  in  October,  1876,  sailed  from  Lon- 
don for  New  Zealand  with  (amongst  other  things)  some 
fencing  wire  of  the  plaintiffs'  on  board.  "Whilst  lying 
at  her  port  of  destination,  and  before  she  had  discharged 
all  her  cargo,  a  fire  broke  out  in  the  hold,  and  ship  and 
cargo  were  in  imminent  danger  of  destruction.  Rising 
to  the  occasion,  the  master  had  a  quantity  of  water 
poured  into  the  hold  upon  the  wire,  and  so  the  fire  was 
put  out  and  the  ship  saved. 

This  was  an  action  to  recover  a  contribution  by  way 
of  general  average  for  the  damage  thus  deliberately  in- 
flicted on  the  wire,  and  it  was  held  that  the  claim  was 
well  founded. 

• 
Pri     inlecf        "When  the  stormy  winds  do  blow,  it  is  sometimes  essential  to 
general  aver-  the  safety  of  the  ship  and  the  success  of  the  adventure  to  throw 
age.  things  overboard  ; — in  technical  language  to  jettison  them.     The 

sacrifice  being  for  everybody's  benefit,  it  would  obviously  be  un- 
just that  the  whole  loss  should  fall  on  the  unfortunate  owner 
whose  goods  were  selected.  The  loss,  therefore,  is  rateably  ad- 
justed between  all  the  owners  ;  and  this  adjustment  is  called 
general  average  (e). 
()  lv  mer-  Only  merchandise,  however,  is  liable  to  contribution  ;  therefore 

chandise  not  passengers'  wearing  apparel,  nor  provisions,  nor  convicts  (/). 

liable.  Moreover,  it  is  essential  to  the  liability  to  pay  a  general  aver- 

shin  neces-      a°e  contribution  that  the  ship  should  have  been  saved,  and  that 
sary.  the  sacrifice  should  have  materially  conduced  thereto  ;  or,  as  Lord 

Tenterden  has  well  put  it,  that  the  jettison  should  be  "  the  effect 

((?)  For  an  exhaustive  history  Dock  Co.,  44  L.  T.,  N.  S.  426. 
of  the  law  of  general  average,         (/)   Brown  v.  Stapyleton,   4 

see   the  judgment   of  Watkin  Bing.  119. 
Williams,  J.    in  Pirie  v.  Middle 


AVERAGE.  195 

of  danger  and  the  cause  of  safety."  The  part  of  the  cargo  thrown 
overboard  must  also  have  been  properly  laden,  e.g.,  (unless  war- 
ranted by  usage)  not  on  deck  (g).  . 

Masts  and  sails  destroyed  in  consequence  of  having  to  carry  an  Masts  and 
unusual  press  of  sail  {e.g.,  as  in  Covington  v.  Roberts  (h),  to  es-  sails. 
cape  from  a  French  privateer)  are  not  subjects  of  general  aver- 
age; but  if  they  have  been  deliberately  cut  away  for  the  sake  of 
saving  the  ship,  they  are  (i).     Incidental  expenses  may  also  be  Incidental 
claimed.     For  instance,    when  a  ship  goes  into  port  in  conse-  expenses, 
quence  of  an  injury  to  her  which  is  itself  the  subject  of  general 
average,  the  expenses  of  warehousing  and  reloading  goods  neces- 
sarily unloaded  for  the  purpose  of  repairing  the  injury,  and  ex- 
penses incurred  for  pilotage  and  other  charges  on  the  vessel  leav- 
ing the  port,  are  also  the  subject  of  general  average  (k). 

The  law  on  this  subject  was  exhaustively  considered  in  the  re- 
cent case  of  Svendsen  v.  Wallace  (I)  before  the  House  of  Lords. 
A  ship  on  a  voyage  (from  Rangoon  to  Liverpool)  having  sprung 
a  dangerous  leak,  the  captain,  acting  justifiably  for  the  safety  of 
the  whole  adventure,  put  into  a  port  of  refuge  to  repair.  In  port 
the  cargo  was  reasonably,  and  with  a  view  to  the  common  safety 
of  ship,  cargo,  and  freight,  landed  in  order  to  repair  the  ship. 
The  ship  was  repaired,  the  cargo  reloaded,  and  the  voyage  com- 
pleted. In  an  action  by  the  shipowners  against  the  cargo  own- 
ers, it  was  held  that  the  latter  were  not  chargeable  with  a  gen- 
eral average  contribution  in  respect  of  the  expenses  of  re-shipping 
the  cargo. 

It  is  to  be  observed  that  a  person  who  has  been  compelled  to  Remedy  over 
pay  a  general  average  contribution  will  generally  have  his  remedy 
over  against   the  underwriters,  so  that   they  are  often    really 
the  interested  parties  in  questions  of  general  average. 

Particular  average  is  "  is  a  very  incorrect  expression  used  to  de^  Particular 
note  every  kind  of  partial  loss  or  damage  happening  either  to  the  average, 
ship  or  cargo  from  any  cause  whatever"  (m).  Such  a  loss  rests 
where  it  falls.  The  ordinary  form  of  policy  on  goods  contains 
the  following  "memorandum"  intended  to  protect  the  under- 
writer from  liability  for  partial  losses  which  might  be  claimed  in 
respect  of  certain  perishable  commodities: — 

"  N.B.  Corn,  fish,  salt,  fruit,  flour,  and  seed  are  warranted  free  The  memo- 
from  average,  unless  general,  or  the  ship  he  stranded.     Sugar,  tobacco,  randum. 

(g)  Gould  v.  Oliver,   4  Bing.  3  M.  &  S.  482,    and  Power   v. 

N.  C.  134  ;  and  see  Wright  v.  Whitmore,  4  M.  &  S.  141.  See, 

Marwood,  7  Q.  B.  D.  62.  too,  Anderson  v.  Ocean  Steam- 

(h)  2  N.  R.  378.  ship  Co.,  10  App.  Ca.  107. 

(i)    Birkley   v.   Presgrave,    1  (I)  10  App.  Ca.  404. 

East,  220.  (jm)  Abbott  on  Shipping  (12th 

(k)  Atwood  v.  Sellar,  5  Q.  B.  ed),  p.  497. 
D.  286,  Plummer  v.  Wildman, 


190 


AVERAGE. 


hemp,  flax,  hides,  and  skins  are  warranted  free  from  average  under 
five  pounds  per  cent,  and  all  other-goods,  also  the  ship  and  freight  are 
warranted  free  from  average  under  three  pounds  per  cent.,  unless 
general,  or  the  ship  be  stranded." 
What  is  a  The  underwriter,  then,  agrees  to  be  liable  if  the  ship  is  "strand- 

• 'stranding."  ed.»  There  has  been  much  litigation  on  the  question,  What  is 
a  "stranding  "  ?  The  leading  case  on  the  point  is.Wells  v.  Hop- 
wood  (n),  where  Lord  Tenterden  said  that  a  vessel's  taking  the 
ground  "under  any  extraordinary  circumstances  of  time  or  place, 
by  reason  of  some  unusual  or  accidental  occurrence,"  will  con- 
stitute a  stranding.  But  it  will  not  be  a  stranding  if  she  takes 
the  ground  in  the  ordinary  course  of  navigation  (o).  Thus,  in  the 
Letchford  v.  recent  case  of  Letchford  v.  Oldham  ( p),  where  it  appeared  that 
'  Mdhain.  the  paddles  of  steamers  leaving  a  harbour  at  low  tide  had  caused 

an  elevation  and  a  hole,  into  which  the  vessel  had  pitched,  it 
was  held  that  there  was  no  stranding.  The  striking  on  a  rock  is 
not  a  stranding,  unless  the  vessel  thereby  becomes  stationary  (q). 
If  there  is  a  stranding,  the  policy  applies,  though  the  loss  was 
not  really  caused  by  it  (r). 


Partner ship  Liability. 


[82.] 


WAUGH  v.  CARVER. 

[2  H.  Bl.  235  (1794).] 

In  February,  1790,  Erasmus  Carver  and  "William  Car- 
ver, ship-agents,  of  Southampton,  of  the  one  part,  and 
Archibald  Giesler,  ship-agent,  of  Plymouth,  of  the  other 
part,  entered  into  a  rather  wide-awake  agreement  for 
their  mutual  benefit.  By  the  terms  of  this  agreement 
Giesler  was  to  remove  from  Plymouth  and  settle  at 
Cowes.  There  he  was  to  establish  a  house  on  his  own  ac- 
count, which  the  Carvers  were  to  puff.     Giesler,  on  the 


(n)  3  B.  &  Ad.  20. 

(o)  Kingsford  v.  Marshall.  8 
Bins;.  448,  and  Hearne  v.  Ed- 
munds, 1  B.  &  B.  388. 

( p)  5  Q.  B.  D.  538. 


(q)  MacDongle  v.  R.  Exch. 
Ass.  Co.,  4  Camp.  283. 

(r)  Per  Lord  Tenterden,  in 
Wells  v.  Hopwood,  sup. 


PARTNERSHIP    LIABILITY.  197 

other  hand,  was  to  endeavour  to  persuade  all  the  ship- 
masters putting  into  Portsmouth  to  employ  the  Carvers. 
Arrangements  were  made  for  sharing  in  certain  propor- 
tions the  profits  of  their  respective  commissions,  and 
the  discount  on  the  bills  of  tradesmen  employed  by 
them  in  repairing  the  ships  consigned  to  them.  It  was 
also  expressly  provided  that  neither  of  the  parties  to 
the  agreement  should  be  answerable  for  the  acts  or  losses 
of  the  other,  but  each  for  his  own.  Accordingly  Gies- 
ler  left  Plymoth  and  came  to  Cowes,  and  in  the  course 
of  carrying  on  his  business  there  he  incurred  a  certain 
debt  to  the  plaintiff  in  this  action,  who  now  sought  to 
make  the  Carvers  liable  on  the  ground  that  the  agree- 
ment made  them  partners  with  Giesler  and  responsible 
for  his  debts. 

It  was  held,  in  spite  of  the  clause  providing  that  each 
should  be  responsible  for  his  own  losses,  that  the  agree- 
ment did  make  the  Carvers  partners,  for — 

(1.)  He  who  takes  the  profits  of  a  partnership  must 
of  necessity  be  made  liable  Tor  the  losses. 

(The  student,  however,  must  look  at  the  note  before 
entirely  accepting  this  proposition.) 

(2. )  He  who  lends  his  name  to  a  partnership  becomes, 
as  against  all  the  rest  of  the  world,  a  partner. 


COX  v.   HICKMAN.  [83.] 

[8  H.  L.  C.  268  (I860).] 

Messrs.  Smith  &  Co.,  iron-merchants,  becoming  in- 
solvent, a  deed  of  arrangement  was  executed  between 
them  and  their  creditors.  By  this  deed  Smith  &  Co. 
assigned  all  their  property  to  five  trustees  to  carry  on 
the  business  under  the  name  of  the  Stanton  Iron  Com- 
pany. The  trustees  were  to  manage  the  works  as  they 
thought  fit,  and  to  execute  all  contracts  and  instruments 


198  PARTNERSHIP   LIABILITY. 

in  carrying  on  the  business.  Amongst  the  creditors 
were  the  defendants.  They  subscribed  and  executed  the 
deed,  and  were  both  named  as  trustees.  One  of  them 
never  acted  at  all;  the  other  acted  for  six  weeks  and  then 
resigned.  The  other  trustees,  however,  did  act,  and  did 
the  best  they  could  for  the  business.  The  plaintiff  sup- 
plied the  company  with  a  quantity  of  iron  ore,  and  one 
of  the  trustees  accepted  bills  of  exchange  in  the  name 
of  the  company  for  the  price  of  it. 

The  question  was  whether  the  trustees  were  agents 
for  the  defendants  to  accept  the  bills,  and  it  was  held 
that  they  were  not;  on  the  ground  that  the  persons  for 
whose  benefit  the  business  was  carried  on  were  not  the 
creditors,  but  Messrs.  Smith  &  Co.  The  real  test  of 
partnership  liability,  the  judges  said,  was  not  partici- 
pation in  the  profits,  but  whether  the  trade  was  carried 
on  by  persons  acting  as  the  agents  of  the  persons  sought 
to  be  made  liable. 

Persons  may  be  partners  as  regards  the  world  at  large,  although 
they  are  not  partners  as  between  themselves;  they  may  have  all 
Holding  out.  the  kicks  and  none  of  the  halfpence.  If  a  man  holds  himself  out 
as  a  partner,  he  is  liable  to  a  person  who  for  that  reason  gives 
credit  to  the  firm  (s).  The  law  does  not  prescribe  any  particular 
acts  which  shall  constitute  a  ^holding  out";  but  evidence  may 
be  given  of  anything  the  defendant  has  done  which  would  natur- 
ally induce  others  to  believe  he  was  a  partner,  such  acts  having 
the  effect  of  an  estoppel.  A  person  who  lends  his  name  to  a  busi- 
ness in  this  way,  without  having  any  real  interest  in  it,  is  called 

_  a  nominal  partner.     A  dormant  partner,  on  the  other  hand,  is  one  , 

Dormant  ,     ,  ,  ; *_  '  ' 

partners  wno  c*oes  no^  appear  to  the  world  to  be  a  partner,  but  who  shares 

the  profits. 

Effect  of  -^  "*as  f°r  a  l°ng  time  thought  that  if  it  could  be  proved  that 

sharing  the  defendant  shared  the profits,  he  was  thereby  proved  to  be  a 

profits.  partner.     The  effect  of  Cox  v.  Hickman  is  to  destroy  this  doctrine; 

and  the  law  now  is  that,  though  community  in  the  profits  is 
strong  evidence  of  partnership,  it  is  not  conclusive.  There  must 
always  be  an  examination  into  the  intention  of  the  contracting 
parties  (t). 

(s)  Dickenson  v.  Valpy,  10  B.  (I)  See  Walker  v.  Hirech,  27 
&  C.  140.  Ch.  D.  460. 


PARTNERSHIP    LIABILITY.  109 

Moreover,  by  an  Act  passed  in  1865,  and  called  Bovill's  Act  Partnership 
(u),  it  is  provided  that  the  following  agreements  shall  never  of  Law  Amend- 
themselves,  be  sufficient  to  make  the  contracting  parties  partners: —  uient  Act. 

(1.)  Lending  money  by  written    contract   to  a  trader  (a)  on  the  Lending 
terms  of  receiving  interest  varying  according  to  the  success  of  money  to 
the  concern.     If,  however,  the  trader  fails,  the  lender  must  wait  trader, 
till  the  claims  of  all  the  regular  creditors  have  been  satisfied  (y). 

(2.)  Paying  servants  or  agents  by  a  share  of  the  profits.  Servants. 

The  section  (which  distinctly  says  '"nor  give  him  the  rights  of 
a  partner")  is  generally  an  effective  answer  to  the  defence  of 
partnership  so  often  set  up  before  chairmen  of  Quarter  Sessions 
in  embezzlement  cases. 

(3.)    Widow  o)'  child  of  deceased  partner  receiving  portion    of  Widow, 
profits  by  way  of  annuity. 

(4).   Receiving  portion  of  profits  for  sale  of  goodwill.  ga]e  0f  .rood- 

It  must  be  observed,  however,   that  the  principle  of   Cox  v.  will. 
Hickman,  (which  is  of  earlier  date  than  the  statute)  would  have 
applied  to  all  these  four  cases.     The  only  effect,  it  has  been  said, 
of  the  Act  is  to  make  the  law  to  be  that  sharing  in  the  profits,  Bovill's  Act 
while  it  is  always  insufficient  evidence  to  establish  partnership  lia-  very  little 
bility,  is,  as  to  the  protected  classes,  no  evidence  at  all  (z).  usc- 

Partnership  is  a  branch  of  the  law  of  agency  («) ;  and  there- 
fore the  proper  test  to  apply  to  the  liability  of  a  partner  who  is 
not  an  actual  party  to  a  particular  contract  is  icJiether  the  partner 
who  contracted  did  so  as  his  agent.  On  this  point  Sandilands  v.  Sandilands «. 
Marsh  (b),  (where  it  was  held  that  a  navy  agent,  who  does  not  Marsh, 
usually  deal  in  annuities,  bound  his  firm  by  guaranteeing  the 
payment  of  an  annuity  which  he  had  purchased  for  a  customer), 
is  a  leading  authority.  When  questions  of  this  kind  arise,  refer- 
ence should  always  be  had  to  the  nature  and  purposes  of  the  part- 
nership. A  member  of  a  mercantile  firm,  for  instance,  would  gen- 
erally bind  the  firm  by  accepting  a  bill  of  exchange  (c);  not  so, 
a  member  of  a  firm  of  solicitors  (d).  A  trading  firm  is  bound,  it 
has  been  held,  by  one  of  its  members  releasing  a  debt  due  to  it, 
or  by  the  sale  or  insurance  of  the  partnership  goods  by  one  of  its 
members  (e);  but  a  partner  cannot  bind  his  colleagues  by  a 
submission  to  arbitration  (/).     Moreover,  if  the  plaintiff  was  aware 

(«)  28  &  29  Vict.  c.  86.  (e)  Kirk  v.  Blurton,  9   M.  & 

(x)  See  ex  parte  Delhasse,    7  W.  284,  and  Forbes  v.  Marshall, 

Ch.  Div.  511.  11  Ex.  166. 

(y)  Sec.  5.  (d)  Hedley  v.   Bainbridge,   3 

(z)  PerKellv,  C.  B., in  Holme  Q.  B.  316,  and   see   Garland  v. 

v.  Hammond,  L.  R.  7  Ex.  218;  Jacomb,  L.  R.  8  Ex.  211. 

see  also  Pooley  v.  Driver,  5  Ch.  (?)  Stead  v.  Salt,  3  Bing.101, 

I>iv.  45.-V  and  Hooper  v.  Lusby,  4  Camp. 

(a)  Yorkshire  Banking  Co.  v.  66. 

Beatson,  5  C.  P.  D.  109.  (f)  Adams  v.  Bankart.  1  C. 

{b)  2   B.    &    Aid.;     see    also  M.  *&  R.  681,    and   Duncan   v. 

Cleather  v.  Twisden,  28  Ch.  D.  Lowndes,  3  Camp.  481. 

340. 


200 


PARTNERSHIP    LIABILITY. 


Liability  of 
shareholders 


Incoming 
partner. 

Retiring 
partner. 


Dissolution 
of  partner- 
ship Law. 


of  the  want  of  authority,  even  in  cases  where  one  partner  might 
naturally  be  expected  to  have  authority  to  contract  for  the 
others,  he  cannot  recover  (g).  A  partner  is  liable  on  partnership 
contracts,  not  only  to  the  extent  of  the  capital  he  has  embarked 
in  the  concern,  but  to  the  whole  extent  of  his  means,  unless  it  is 
a  partnership  in  a  company  with  limited  liability.  As  to  the 
liability  of  persons  who  have  become  subscribers  to  a  company  pro- 
jeeted  but  not  finally  established,  the  cases  of  Reynell  v.  Lewis,  15 
M.  &  W.  517,  Bailey  v.  Macaulay,  13  Q.  B.  815,  Kelner  v.  Baxter, 
L.  R.  2  C.  P.  174,  and  Fox  v.  Clifton,  6  Bing.  776,  may  be  con- 
sulted. Mines  within  the  stannaries  of  Devon  and  Cornwall  are  ■ 
often  worked  by  unincorporated  partnerships  with  transferable 
shares  on  what  is  termed  the  '"cost-book"  principle,  aud  the  share- 
holders in  such  a  company  are  liable  on  all  usual  contracts  for 
goods  supplied  (h). 

An  incoming  partner  is  not  liable  upon  contracts  made  before 
his  entering  the  partnership  (Beal  v.  Mouls,  10  Q.  B.  976;  Vere 
v.  Ashby,  10  B.  &  C.  288;  see  too  Cripps  v.  Tappin,  1  C.  &  E.13). 

When  a  person  who  has  held  himself  out  as  a  partner  retires 
from  the  firm,  he,  of  course,  continues  liable  on  contracts  entered 
into  before  his  retirement.  As  to  contracts  entered  into  by  the 
firm  after  his  retirement,  the  rule  is  this  : — If  he  has  advertised 
his  retirement  in  the  Gazette,  he  is  not  liable  to  persons  who  did 
not  deal  with  the  firm  when  he  was  a  member  of  it.  But  to  prevent 
his  being  liable  to  persons  who  did  deal  with  the  firm  when  he 
was  a  member  of  it,  advertisement  in  the  Gazette  is  not  sufficient ; 
the  old  customers,  unless  aware  of  the  retirement,  being  entitled 
to  express  notice  (i).  If,  however,  a  creditor  who  knows  that  a 
reconstruction  of  the  firm  has  taken  place,  elects  to  accept  the 
new  firm  as  his  debtors,  and  goes  on  dealing  with  it  just  as  before, 
the  retiring  partner  is  released  and  cannot  be  afterwards 
charged  (k).  A  dormant  partner  except  as  regards  persons  who 
knew  him  to  be  a  partner,  need  not  give  anybody  any  notice  of 
his  retirement  (/). 

There  are  various  ways  in  which  a  partnership  may  be  dis- 
solved : — 

(1.)   By  operation  of  law  ; 

E.g.,  through  death  (in),  bankruptcy  (n),  or  conviction  for 
felony. 

(2.)  By  agreement  ; 


(g)  Gallway  e.  Mathew,  10 
East,  264. 

(h)  Hawker  v.  Bourne,  8  M. 
&  W.  703;  Ralph  r.  Harvey,  1 
Q.  B.  845;  and  see  Harrisons. 
Heathorn,  6  M.  &  G.  81. 

(t)  Farrar  v.  Deflinne,  1  C.  & 
K.  580. 

(fc)  Hart  i>.  Alexander,    2  M. 


&W.  484;  Bilborough  ?•.  Holmes, 
5Ch.  Div.;  and  Scarf  n.Jardine, 
7H.  L.  (E.)  345. 

(/)  Carter  v.  Whalley,  1  B. 
&  Ad.  11. 

(m)  Backhouse  v.  Charlton,  8 
Ch.  D.  444. 

(n)  Crawshay  v.  Collins,  15 
Ves.  228. 


CONTRACT    OF    SALE.  201 

E.fj.,  by  the  time  fixed   for  the  duration  of  the  partnership  Agreement 
expiring  (o). 

(:;. )   By  decree  of  a  court  of  equity ;  Decree. 

E.g.,  where  the  partnership  was  induced  by  fraud  (]>),  or  where 
one  of  the  partners  neglects  his  business  (q),  or  becomes  perma- 
nently insane  (r),  or  is  always  cpuarrelling  with  the  other  part- 
ners (s). 


Contract  of  Sale. 


TARLING  v.  BAXTER.  .  [84.] 

[6  B.  &  C.  360  (1827).] 

On  January  4th,  1825,  it  was  in  writing  agreed  be- 
tween Mr.  Baxter  and  Mr.  Tarling  that  the  former  should 
sell  to  the  latter  a  stack  of  hay  then  standing  in  Canon- 
bury  Field,  Islington,  at  the  price  of  £115.  Payment 
was  to  be  made  on  February  4th,  but  the  stack  was  to 
be  allowed  to  remain  where  it  was  till  May  Day.  It 
was  not  to  be  cut  till  paid  for.  This  was  held  to  be  an 
immediate  not  a  prospective  sale,  so  that  when  on  Jan- 
uary 20th  the  stack  was  accidentally  burnt  down,  the 
loss  fell  on  Tarling  the  buyer.  "  The  rule  of  law,"  said 
Bayley,  J.,  "  is  that  where  there  is  an  immediate  sale 
nothing  remains  to  be  done  by  the  vendor  as  between 
him  and  the  vendee,  the  property  in  the  thing  sold  vests 
in  the  vendee,  and  then  all  the  consequences  resulting 
from  the  vesting  of  the  property  follow,  one  of  which 
is  that  if  it  be  destroyed,  the  loss  falls  on  the  vendee." 

(o)  Featherstonhaugh  v.  Feu-  9  Hare,  556. 
wick,  17  Ves.  298.  (r)    Rowlands   v     Evans,    30 

(  »)  Rawlins  v.  Wickham,   1  Beav.  302. 
Giff.  355.  (s)  Watney  v.  Wells,  30  Beav. 

(q)  Harrison  r.   Tennant,   21  56,  and  Leary  v.  Shout,  33  Beav. 

Beav.  482,  and  Smith  v.  Mules.  582. 


202  CONTRACT   OF   SALE. 


[85.J  ACRAMAN  v.  MORRICE. 

[8  C.  B.  449  (1849).] 

Morrice,  a  timber  merchant,  agreed  to  buy  from  one 
Swift  the  trunks  of  certain  oak-trees  belonging  to  Swift 
and  lying  at  his  premises  at  Hadnock,  in  Monmouth- 
shire. He  marked  out  the  timber  he  wanted  and  paid 
for  it,  and  it  only  remained  for  Swift  to  sever  the  parts 
not  tvanted  and  send  off  the  rest  to  the  purchaser.  Un- 
fortunately just  then  Swift  became  bankrupt.  On  hear- 
ing of  his  bankruptcy  Morrice  rose  to  the  occasion.  He 
sent  his  men  to  Hadnock,  and  had  all  the  timber  he  had 
paid  for  carried  off.  Swift's  assignees,  however,  of 
whom  Mr.  Acraman  was  the  leading  spirit,  objected  to 
this  proceeding,  as  they  considered  that  the  property 
in  the  timber  had  not  passed  to  Morrice,  Swift  not  hav- 
ing severed  the  boughs.  This  contention  prevailed, 
"Wilde,  C.J.,  saying — "Upon  a  contract  for  the  sale  of 
goods,  so  long  as  anything  remains  to  be  done  to  them 
by  -the  seller,  the  property  does  not  pass,  and  the  seller 
has  a  right  to  retain  them.  In  the  present  case  several 
things  remained  to  be  done.  The  buyer,  having  se- 
lected and  marked  the  particular  parts  of  the  trees 
which  he  wished  to  purchase,  it  became  the  seller's 
duty  to  sever  those  parts  from  the  rest,  and  to  convey 
them  to  Chepstow,  and  there  deliver  them  at  the  pur- 
chaser's wharf.  .  .  .  The  property  clearly  had  not 
passed  to  the\defendant,  and  he  was  guilty  of  a  tres- 
pass and  a  conversion  in  possessing  himself  of  it  in  the 
way  he  did." 

"When  the  subject-matter  of  a  sale  is  clear  and  ascertained  at 

the  time  of  the  contract  and  the  price  is  fixed,  the  property  in 

tlje  thing  sold  with  all  the  risks  passes  at  once  to  the  purchaser. 

To  this  rule,  which  Tarling  v.  Baxter  illustrates.  Acramanv.  Mor- 
Something  ,.  .,,  ..  ,,    ,      ,  ,, . 

.    s       rice  supplies  us  with  an  exception,  viz.,  that  u-hen  somethinq  re- 
remaining.  1F  l         '         '  * 

to  be  done  by  ma'ns  t°  be  done  by  the  seller,  the  property  does  not  pass.     Thus,  when 

seller.  goods,  part  of  an  entire  bulk,  are  sold  the  property  in  such  goods 


CONTRACT    OF    SALE.  203 

does  not  pass  until  they  are  separated  from  the  hulk,  that  is. 
there  must  be  appropriation  of  a  specific  portion  (/). 

Where  the  sale  is  of  a  chattel  to  be  made  by  the  seller  the 
property  does  not,  as  a  general  rule,  pass  until  the  chattel  is  ac- 
tually made  and  approved  by  the  buyer.  But  the  question 
whether  or  no  the  property  had  passed  is  purely  one  of  intention, 
to  be  collected  from  all  the  circumstances.  A  Mr.  Pocock  or-  Mucklow  v 
dered  a  boat-builder  to  build  him  a  barge.  The  boat-builder  set  Mangles, 
about  it;  he  was  paid  money  on  account  as  the  work  proceeded, 
and  by  and  by  the  name  of  Mr.  Pocock  duly  appeared  painted 
on  the  stern.  In  spite  of  all  this,  it  was  held  that  the  property 
in  the  barge  had  not  passed,  and,  the  boat-builder  having  be- 
come bankrupt,  that  it  belonged  to  his  assignees  (a).  With  this 
may  be  usefully  compared  a  somewhat  later  case  (x),  in  which  a  Clarke  v. 
ship-builder  agreed  to  build  a  ship  for  a  firm  of  merchants,  the  Spence. 
building  as  it  proceeded  to  be  superintended  by  an  agent  of  the 
merchant's  firm.  A  price  was  fixed,  and  it  was  arranged  that 
payment  should  be  made  by  instalments  regulated  by  particular 
stages  in  the  progress  of  the  work.  The  court  held  that  the 
property  in  the  materials  vested  in  the  purchaser  at  the  time 
when  they  were  put  together  under  the  approval  of  the  superin- 
tendent, or,  at  all  events,  when  the  first  instalment  was  paid. 
Here,  the  fact  of  the  superintendence  by  the  purchasers'  agent 
would  seem  important  to  show  an  intention  to  pass  the  property 
as  the  work  proceeded,  for,  otherwise,  when  one  vessel  had  been 
nearly  constructed  the  superintendent  might  have  been  called 
upon  to  begin  dc  novo  and  superintend  the  building  of  a  second. 

It  is  to  be  noted  that,  although  the  property  in  a  chattel  may  p  . 

be  in  the  vendee,  so  as  to  make  the  loss  fall  on  him  if  the  thing  -without 
were  to  perish,  yet  he  may  not  be  entitled  to  possession.  Thus,  in  possession, 
case  last  quoted,  we  have  seen  that  the  property  in  the  materials 
passed  to  the  purchaser  as  the  building  of  the  ship  proceeded, 
but  the  builder,  nevertheless,  had  a  right  to  retain  the  fabric  in 
order  to  complete  it  and  earn  the  rest  of  the  price.  So,  too,  in  a 
ready-money  sale  the  vendor  has  a  lien  for  the  price.  But,  when 
goods  are  sold  on  credit,  and  nothing  is  said  as  to  the  time  of  de- 
livery, the  purchaser  is  entitled  to  immediate  possession,  both 
the  right  of  property  and  the  right  of  possession  vesting  in  him 
at  once. 

(i)  Dixon   v.    Yates,  5  B.   &  &   E.    470,    and    see   Inglis  v. 

Ad.  313.  Stock,  10  App.  Ca.  263,  which 

(w)  Mucklow   v.   Mangles,   1  was  a  great  figh^t  about  the  lia- 

Taunt.  318,  and  see  Atkinson  v.  bility  of  underwriters   for  the 

Bell,  8  B.  &  C.  277.  loss  of  a  quantity  of  sugar  going 

(x)  Clarke  r.   Spence,  4  Ad.  from  Hamburg  to  Bristol. 


204  STOPPAGE    IN    TRANSITU. 


Stoppage  in  Transitu. 

[86.]  LICKB ARROW  >:  MASON. 

[2  T.  R.  G3  (1788).] 

Freeman,  of  Rotterdam,  sen«t  an  order  to  Messrs. 
Turings,  of  Middleburg,  to  ship  a  quantity  of  corn  to 
Liverpool.  This  order  Messrs.  Turings  were  rash 
enough  to  execute;  for  they  then  considered  Freeman 
to  be,  if  not  "the  richest  merchant  in  Rotterdam,"  at 
all  events,  a  safe  and  solvent  person.  On  July  '22nd, 
1786,  Messrs.  Turings  put  the  corn  on  board  the  ship 
"  Endeavour,"  whereof  the  master  was  a  Mr.  Holmes. 
It  is  the  duty  of  a  master  when  he  sets  out  on  a  voy- 
age like  this  to  sign  bills  of  lading,  by  way  of  acknow- 
ledging that  he  has  got  the  goods  on  board.  Holmes 
signed  four  of  these  bills  of  lading  (usually,  it  may  be 
remarked,  only  three  are  signed);  and  of  the  four  one 
he  pocketed,  two  were  endorsed  in  blank  by  Turings 
and  Co.  and  sent  to  Freeman  with  an  invoice  of  the 
goods  shipped,  and  the  fourth  was  retained  by  Messrs. 
Turings. 

The  sound  ship  "Endeavour"  had  not  set  sail  very 
long  when  tidings  came  to  the  ears  of  the  Turings  that 
Freeman  had  become  bankrupt.  Rising  to  the  occa- 
sion, they  immediately  sent  off  the  bill  of  lading  that 
remained  in  their  custody  to  Messrs.  Mason  and  Co., 
of  Liverpool,  with  a  special  indorsement  to  deliver  the 
corn  to  them  for  Messrs.  Turings'  benefit.  Pursuant 
to  this  special  indorsement,  Mr.  Holmes,  when  he  ar- 
rived at  Liverpool,  delivered  his  cargo  to  the  Masons. 
In  the  meantime,  however,  and  before  he  became  bank- 
rupt, Freeman  had  sent  his  two  bills  of  lading  to 
Messrs.  Lickbarrow  duly  negotiated  for  a  valuable 
consideration.      Messrs.     Lickbarrow,    therefore,   were 


STOPPAGE    IN    TRANSITU.  205 

anything  but  pleased  to  find  that  Mason  and  Co.  had 
got  hold  of  the  corn,  and  they  brought  this  action  to 
try  and  make  them  give  it  up.  In  this  they  were  suc- 
cessful. Judgment  was  given  for  the  plaintiffs,  on  the 
ground  that  a  bond  fide  assignment  of  the  bills  of  lad- 
ing defeats  the  vendor's  right  to  stop  in  transitu. 

The  unpaid  vendor  of  goods  has  a  right,  on  the  insolvency  of 
the  vendee,  to  stop  the  goods  and  retake  possession  of  them  while 
on  their  way.  The  right  to  stop  is  personal  to  the  vendor  ;  and  yv]1()  may 
cannot,  for  example,  be  exercised  by  a  surety  lor  the  price  of  the  stop, 
goods  (y).  But,  any  time  before  the  transitus  is  over,  the  vendor 
may  ratify  the  act  of  a  stranger  who  has  stopped  the  goods  (z)  ; 
and  a  person  who  sends  goods  to  be  sold  on  the  joint  account  of 
himself  and  his  consignee  may  stop  (a).  The  vendor  may  retake 
the  goods  though  he  holds  the  consignee's  acceptance,  and  with- 
out returning  the  bill  (It). 

In  most  stoppage  in   transitu   cases  the  difficulty  is  to  know 
whether  the  journey  was  at  an  end  or  not.     The  principle  to  be  ^he  transi- 
deduced  from  the  case  is  that  the  transitus  is  not  at  an  end  till  the  tus. 
goods  have  reached  the  place  named  by  the  buyer  to  the  seller  as 
the  place  of  their  destination  (c),  even  though  the  goods  be  car-  p      , 
ried  in  a  ship  chartered  by  the  buyer  (it).     If,  however,  the  ship  is  sujp. 
the  buyer's  own,  the  goods  cannot  generally  be  taken  (e).     And, 
though  the  goods  remain  in  the  hands  of  the  carrier,  the  transitu* 
may  nevertheless  be  over  ;  as,  for  instance,  where  the  vendee  pays 
the  carrier  a  rent  for  warehousing  (/),  or  where  he  has  done  some- 
thing equivalent  to  taking  possession  (g).     The  transitus,  how- 
ever, is  not  determined  by  the  goods  arriving  at  an  intermediate  Arrival  at 
stage,  unless  they  are  to  be  thenceforward  at  the  orders  of  the  intermediate 
buyer  and  in  the  hands  of  persons  who  are  to  keep  them   for  station. 

him  (/().     The  vendee  may  shorten  the  transitus  bv  going  out  to  meet  ,r      , 

v   '  •'  J  °      °  Vendee  meet- 

the  goods  and  taking  them  from  the  carrier  ;  but  a  mere  demand,  jncr  <r0ods. 

even  though  backed  by  the  production  ot  a  delivery  order,  will 

(y)  Siffken  v.  Wray,  G  East,  Cilgwyn  Slate  Co.,  55  L.  J.,  Q. 

371.  B.  D.  67. 

(z)  Bird  v.  Brown,  4  Ex.  78G.  (e)  Schotsmans  v.  Lane,  &c, 

(a)  Xewsom  v.    Thornton,    6  Ry.  Go.,  L.  R.  2  Ch.  332. 
East,  17  ;  and  see  Feise  v.  Wray,  (/)  Dixon  v.  Baldwen,  5  East, 
3  East,  93.  174,  and  see  ex  parte  Barrow,  6 

(b)  Edwards  v.  Brewer,  2  M.  Ch.  D.   783,  and  Miles's  Case, 
&  W.  375.                      .  15  Q.  B   D.  39. 

(c)  Coates  v.  Railton,  6  B.  &  (g)  Ellis   v.    Hunt,   3   T.    R. 
C.  427.  464  ;  and  see  Foster  v.  Framp- 

(d)  Berndtson  v.  Strang.   L.     ton,  6  B.  &  C.  107. 

R.  3  Ch.  588  ;  and  see  ex  parte  (h)  Smith  v.   Goss,   1  Camp. 

Rosevear   China  '  Clay   Co.,    re  282,  and  Mills  v.  Ball,  2  B.   & 

Cock,  40  L.  T.,  and  Brindley  v.  P.  457. 
15  COMMON  LAW. 


206 


STOPPAGE    IN    TRANSITU. 


-How  to  stop. 


Stopping  or 

delivering 

part. 


Assignment 
of  bill  of 
lading. 


Kemp  v. 
Falk. 


Effect  of 
stopping. 

Bills  of 
lading. 


Sewell  r. 
Eurdick. 


not  be  sufficient  to  defeat  the  right  to  stop  (/).  On  the  other 
hand,  the  carrier  may  not  prolong  the  transit  so  as  to  give  the  ven- 
dor an  increased  right  of  stoppage. 

To  stop  the  goods,  it  is  not  necessary  for  the  vendor  to  lay  cor- 
poreal touch  on  them.  It  is  sufficient  if  he  gives  notice  to  those 
who  hare  the  immediate  custody  of  the  goods  ;  or,  if  to  their  employ- 
ers, so  that  they  may  have  reasonable  time  to  communicate  with 
such  persons  (k). 

The  stopping  of  part  of  the  goods  consigned  has  no  effect  on  the 
remainder,  though  the  contract  is  entire  (/).  On  the  other  hand, 
the  delivery  of  a  pari  of  goods  sold  under  one  entire  contract,  if 
such  delivery  of  part  was  inteuded  to  represent  the  whole,  ivill 
defeat  the  right  to  stop  (in). 

The  most  usual  way,  however,  in  which  the  vendor's  right  is 
defeated  is  by  assignment  of  the  bill  of  lading  to  a  bond  fide  as- 
signee for  a  valuable  consideration.  An  assignment,  however,  by 
the  consignee  of  the  bill  of  lading  by  way  of  pledge  will  not  de- 
feat the  vendor's  right,  subject  to  the  pledge  (»).  And  in  the 
recent  case  of  Kemp  v.  Falk  (o)  it  was  held  that  when  the  pur- 
chaser of  goods  has  resold  them,  though  the  vendor  loses  by  the 
re-sale  the  right  to  stop  the  goods  themselves  in  transitu,  he.  is  en- 
titled, if  he  gives  what  would  have  been  a  valid  notice  had  there 
been  no  re-sale,  to  intercept,  to  the  extent  of  his  own  unpaid  pur- 
chase money,  so  much  of  the  sub-purchaser's  purchase  money  as 
remains  unpaid  by  him. 

The  effect  of  stoppage  in  transitu  is  not  to  rescind  the  contract, 
but  to  give  the  vendor  a  lien  on  the  goods  (p). 

A  recent  case  on  bills  of  lading,  which  illustrates  the  inconve- 
nience of  the  present  system  of  having  so  many  of  them  for  the 
same  lot  of  goods,  is  Glyn  v  East  and  West  India  Dock  Co.  (q), 
an  action  for  conversion  against  warehousemen  who  had,  in  a 
perfectly  straightforward  manner,  delivered  up  some  goods  on 
the  production  of  the  second  bill,  contrary  to  the  interests  of  the 
plaintiffs,  who  were  indorsees  for  valuable  consideration  of  the 
first.     The  defendants  were  held  not  guilty  of  conversion. 

In  Sewell  v.  Burdick  (r),  it  was  held  that  the  mere  indorse- 
ment and  delivery  of  a  bill  of  lading  by  way  of  pledge  for  a  loan 
does  not  pass  the  property  in  the  goods  to  the  indorsee  so  as 
transfer  to  him  all  liabilities  in  respect  of  the  goods  within  the 
meaning  of  the  Bills  of  Lading  Act  (18  &  19  Vict.,  c.   Ill),  s.  1. 


(i)  Whitehead  r.  Anderson,  9 
M.  &  W.  518  ;  and  see  Coven- 
try r.  Gladstone,  L.  R.  6Eq.  44. 

(/.■)  Whitehead  v.  Anderson, 
supra.  See  also  Phelps  v. 
Combes.  29  Ch.  D.  813. 

(/)  Wentworth  v.  Outhwaite, 
10  M.  &  W.  43G  ;  and  see  Jones 
v.  Jones,  8  M.  &  W.  431. 

(in)  Sulbey  r.  Hey  ward.  2  H. 
Bl.  504  ;  t'rawshay  v.  Eades,  1 


B.  Sc  C.  181  ;  and  ex  parte  Coop- 
er, In  re  M'Earen.  Ch.  D. 

(ft)  In  re  Westzinthus,  5  B.  & 
Ad.  817,  and  Spalding  v.  Rud- 
ing.  6  Beav.  376  :  but  see  Leask 
v.  Scott,  2  Q.  B.  I).  376. 

(o)  7  App.  Ca.  573. 

(//)  Clay  v.  Harrison,  10  B.  & 

C.  106. 

(q)  7  App.  Ca.  591. 
(r)  10  App.  Ca.  74. 


CONTRACT   TO    MARRY.  >07 


Contract  to  Marry. 

ATCHTNSON  v.  BAKER.  [87.] 

[Peake  Add.  Ca.  103  (1797).] 

Mrs.  Baker  yielded  to  the  persuasions  of  Mr.  Atchin- 
son  and  promised  to  marry  him.  But  before  the  happy 
day  came  she  was  disgusted  to  find — so  she  said — that 
her  lover  had  an  abscess  on  his  breast;  and  she  imme- 
diately vowed  that  she  would  never  link  herself  to  such 
a  putrid  moss  of  corrupting  humanity.  Mr.  Atchinson 
brought  an  action  for  breach  of  promise,  and  the  trial 
elicited  some  valuable  remarks  from  Lord  Kenyon :  "If 
the  condition  of  the  parties  is  changed  after  the  time 
of  making  the  contract  it  is  a  good  cause  for  either 
party  to  break  off  the  connection.  Lord  Mansfield  has 
held  that  if,  after  a  man  has  made  a  contract  of  mar- 
riage, the  woman's  character  turns  out  to  be  different 
from  what  he  had  reason  to  think  it  was,  he  may  refuse 
to  marry  her  without  being  liable  to  an  action,  and 
whether  the  infirmity  is  bodily  or  mental,  the  reason  is 
the  same;  it  would  be  most  mischievous  to  compel  par- 
ties to  ruarry  who  can  never  live  happily  together." 

In  spite  of  the  dictum  just  quoted,  it  is  doubtful  if  a  defendant 
can  ever  get  out  of  his  promise  to  marry  by  disparaging  himself. 
In  Hall  v.  Wright  (s)  the  defendant  pleaded  that  since  his  prom-  Hall  v. 
ise  he  had  become  afflicted  with   a  dangerous  bodily  disease,  Wright, 
which  had  occasioned  frequent  and  severe  bleeding  from  the 
lungs,  and,  in  short,  that  he  was  totally  unfit  for  marriage.     But 
the  judges  festively  told  him  that  perhaps  the  lady  might  like  to  be 
his  widow,  and  that  his  plea  was  no  answer  to  the  action.     To  get 
out  ot  his  promise  the  defendant  should  level  his  abuse,  not  at 
himself,  but  at  the  plaintiff.     If,  for  example,  after  he  has  i;iven  Defences  to 
action. 

(s)  E.  B.  &  E.  746. 


208 


CONTRACT   TO    MARRY. 


Exoneration. 


his  promise  he  discovers  (and  evidence  of  general  reputation  is 
admissible!  [t)  that  the  plaintiff  is  a  person  of  poor  morality  (u), 
or  if  the  promise  was  induced  by  the  plaintiff's  material  mis- 
representations as  to  her  family,  position,  or  previous  life  (x),  he 
has  a  good  defence.  But  it  will  not  be  a  defence  to  show  that  at 
the  time  he  promised  to  marry  the  plaintiff  he  did  not  know  that 
she  had  been  in  an  asylum  (y),  or  engaged  to  another  man  (s). 
Most  of  the  defences  which  are  open  to  men  are  open  to  women, 
too;  but,  of  course,  it  would  be  necessary  for  a  woman  defendant 
to  fix  the  plaintiff  with  much  more  than  mere  sexual  immorality 
before  she  would  be  entitled  to  disregard  her  promise.  It  will 
be  a  good  detence.  also,  to  an  action  against  a  woman  that,  after 
she  had  made  the  promise,  the  plaintiff  manifested  a  violent 
temper,  and  threatened  to  ill-use  her  (n). 

Another  defence  to  an  action  for  breach  of  promise  is  that  the 
thing  was  off.  This  exoneration  from  the  promise  may  be  im- 
plied from  the  conduct  of  the  parties:  if,  for  instance,  there  has 
been  neither  intercourse  nor  correspondence  for  a  year  or  two, 
the  jury  would  naturally  draw  the  inference  that  there  was  an 
end  of  the  engagement,  even  though  the  amorous  letters  were 
not  returned  (b). 

A  promise  to  marry  need  not  be  in  writing  (c),  but  the  plain- 
tiff's testimony  must  be  cor  rob  or  a  led  by  some  other  material  evi- 
dence {(1).  Not  long  ago  a  woman  overheard  a  conversation  be- 
tween her  sister  and  a  man,  in  the  course  of  which  the  sister  ex- 
claimed. "Yon  always  promised  to  marry  me,  but  you  never  keep  your 
word."  Instead  of  indignantly  denying  that  he  had  ever  made 
such  a  promise,  the  man  remained  silent.  This  eavesdropper's 
evidence  was  held  sufficiently  "corroborative"  in  the  action 
which  her  sister  soon  afterwards  brought  (e). 

A  married  man  may  be  sued  on  a  promise  to  marry,  if  the  wo- 
married  man  man  did  not  know  he  was  married  (/). 

actionable.  T,  -,  ,        .         .  ,.       „     T         ,      _ 

raney  damages  may  be  given  in  an  action  for  breach  of  prom- 
ise ;  e.g.,  the  defendant's  pecuniary  position,  and  the  girl's 
wounded  feelings,  may  be  taken  into  account  (g).  In  fact,  the 
measure  of  damages  is  rather  as  if  the  action  were  in  tort  than 
in  contract. 


Corrobora- 
tion. 


Promise  by 


Damages. 


(I)  Foulkes  v.  Sellwav,  3  Esp. 
236. 

(w)  Irving  v.  Greenwood,  1  C. 
&  P.  350. 

(x)  Wharton  r.  Lewis,  1  C.  & 
P.  529. 

(y,  Baker  r.  Cartwnght,  10  C. 
B.,  N.  S.  124. 

(z)  Beechey  v.  Brown,  E.  B. 
&  E.  796. 

(a)  Leeds  v.  Cook,  4  Esp.  258. 


(b)  Davis  v.  Bomford,  6  H.  & 
N.  245. 

(c)  Harrison  v.  Cage.  Ld. 
Kavm.  387. 

(d)  32  &  33  Vict.  c.   68,  s.  2. 
(c)  Bessela  v.  Stern,  2  C.   P. 

D.  265 

(/ )  Wild  v.  Harris,  7  C.B.  999. 

(g)  Smith  v.  Woodfine,  1  C. 
B.,N.  S.  G60,  and  Berry  v.  Da 
Costa,  L.  R.  1  C.  P.  331. 


RECOVERY    OF    MONEY    PAID    UNDER  MISTAKE,  ETC.  209 


Recovery  of  Money  Paid  under  Mistake,  &c. 

MARRIOTT  v.  HAMPTON.  [88.] 

[7  T.  II.  269  (1797).] 

This  case  should  impress  the  student  with  the 
wisdom  of  taking  care  of  the  receipt  when  he  pays  his 
tailor's  bill.  Hampton,  possibly,  was  not  a  tailor,  but 
he  was  no  doubt  a  tradesman  of  some  sort,  and  in  the 
course  of  his  trade  sold  goods  to  Marriott.  These  Mar- 
riott duly  paid  for  and  obtained  a  receipt.  But,  in- 
stead of  carefully  putting  it  where  he  could  find  it  if 
he  wanted  it  he  put  it  where  he  could  not  find  it. 
By  and  by  Hampton, — relying,  it  may  be,  on  his 
knowledge  of  Marriott's  careless  habits, — sent  in  his 
bill  again  with  the  air  of  a  long  suffering  and  ill-used 
creditor.  Marriott  had  a  distinct  recollection  of  hav- 
ing paid  for  the  trousers  and  said  so.  Hampton,  how- 
ever, challenged  him  to  show  paper,  and  though  Mar- 
riott looked  high  and  low  for  the  document,  it  could 
not  be  found,  and,  as  Hampton  brought  an  action,  he 
was  obliged  to  pay  over  again. 

But  after  a  while  the  missing  receipt  turned  up,  and 
Marriott  now  went  to  law  with  the  tradesman  to  force 
him  to  repay  the  money.  The  student  will  be  grieved 
to  hear  that  his  efforts  were  not  crowned  with  the  suc- 
cess they  deserved.  Lawyers  must  live,  of  course;  but 
interest  reipublicce  ut  sit  finis  litium,  and  there  would 
be  no  end  to  fat  contentions  and  flowing  fees  if  every- 
body could  have  their  cases  tried  over  again  when  fresh 
evidence  came  to  light 

Money  paid  under  a  MISTAKE  OF  FACTS,  and  which  the  party  Jgnoraiia 
receiving  it  has  no  claim  in  conscience  to  retain,  is  recoverable  as  facti  excused. 
money   paid   without    consideration.     Ignorantia  facti    excusat. 
Two  persons  once  agreed  to  dissolve  partnership,  and  one  of 


210 


RECOVERY    OF   MONEY    TAID    UNDER   MISTAKE,  ETC. 


Pnrrant  p. 
Ecclesiasti- 
cal Commis- 
sioners. 


Chambers  v. 

Miller. 


them  paid  to  the  other  a  sum  of  money  for  his  share,  on  the  foot- 
ing of  an  investigation  lie  had  made  of  the  partnership  accounts. 
He  afterwards  discovered  that  the  profits  were  not  so  great  as  he 
had  supposed  them  to  be,  so  that  he  had  paid  too  much  for  the 
share.  This  being  a  mistake  of  fact,  it  was  held  that,  in  spite 
of  his  carelessness  in  not  having  sufficiently  looked  into  the  mat- 
ter, he  could  recover  the  sum  paid  in  excess  (ft).  And  money  so 
paid  in  ignorance  may  be  recovered  back,  though  the  defendant 
cannot  be  put  in  statu  quo  (i).  In  a  recent  case  it  appeared  that 
a  man  in  Norfolk  had  by  mistake  paid  to  the  Ecclesiastical  Com- 
missioners, who  were  owners  of  the  tithes  of  the  parish,  tithe 
rent-charge  in  respect  of  lands  not  in  his  occupation.  He 
did  not  discover  his  mistake  till  the  two  years  limited  by  6  &  7 
Will.  IV.  c.  71  for  the  recovery  of  a  tithe  rent-charge  had  ex- 
pired, and  the  Ecclesiastical  Commissioners  had  consequently 
lost  their  remedy  for  the  arrears  against  the  lands  actually 
chargeable.  It  was  held,  however,  in  an  action  brought  by  this 
man  against  the  Commissioners,  that  he  was  not  bound  to  find 
out  his  mistake  within  any  particular  time,  and  that,  having 
found  it  out,  he  could  recover  the  money  (A).  Moreover,  money 
paid  in  bond  fide  forgetfulness  of  a  fact  once  known  to  the  plain- 
tiff, under  a  "blind  suspicion  "  of  the  facts,  or  in  the  hurry  of 
business,  can  be  got  back  (f). 

It  is  not,  however,  every  seeming  mistake  of  fact  which  will 
enable  a  party  to  recover  money  paid  in  ignorance.  Where,  for  in- 
stance, bankers  cash  a  customer's  cheque,  and  then  discover  that 
they  have  no  assets  of  his,  they  cannot  recover  the  money  back 
from  the  person  to  whom  they  have  paid  it  (m).  In  such  a  case 
the  bankers  by  a  very  moderate  amount  of  enquiry  might  have  as- 
certained that  the  cheque  presented  to  them  ought  not  to  be  hon- 
oured, and  therefore  there  was  really  no  mistake.  "All  the 
facts,"  said  Williams,  J.,  "are  precisely  as  the  cashier  appre- 
hended them.  There  is  no  mistake.  It  may  be  that  if  the 
cashier  had  at  the  time  been  aware  of  the  state  of  the  customer's 
account,  he  would  not  have  paid  the  cheque.  But  if  we  were  to 
go  into  all  the  remote  considerations  Iry  which  parties  may  be  in- 
fluenced, it  would  be  opening  a  very  wide  field  of  conjecture, 
and  would  lead  to  infinite  confusion  and  annoyance." 

A  contract  based  on  a  misapprehension  of  facts  by  both  jutrfies 
is  void,  and  money  paid  under  it  may  be  recovered  (u). 


(h)  Tovrnsend  r.  Crowdy,  8 
C.  T;.,  N.  S.  477;  Milnes  v. 
Duncan,  G  B.  &  C.  671;  and 
Lucas  r.  Worswick,  1  M.  & 
Rob.  293. 

(i)  Brandish  v.  Ross,  3  Ex. 
527. 

(/.)  Durrant  v.  Eccl.  Comm., 
6  Q.  B.  D.  234,  distinguishing 
Cocks  v.  Masterman,  9  B.  &  C. 


902. 

(?)  Kelly  v.  Solari,  9  M.  & 
W.  54. 

(mi)  Chambers  ?>.  Miller,  13 
C.  B.,  N.  S.,  125;  Aiken  v. 
Short,  1  H.  &  X.  210;  and  see 
Pollard  v.  Bank  of  England,  L. 
R.  6  Q.  B.  623. 

(n)  Cochrane  v.  Willis,  L.  R. 
1  Ch.  58. 


RECOVERY    OF    MONEY    PAID    UNDER    MISTAKE,  ETC.  211 

A  mistake-as  to  the  person  with  whom  he  is  dealing  will  sometimes  Mistake  us  to 

relieve  a  party  from  the  necessity  of   performing  his  contract,  person  one  is 

Jones,  who  had  been  in  the  habit  of  dealing  with  Brocklehurst,  dealing  with. 

a  pipe-hose  manufacturer,  sent  him  an  order  for  50  feet  of  leather 

hose.     It   happened  that  that  very  day  Brocklehurst  had  been 

bought  out  by  his  foreman,  Boulton,  who  executed  the  order  and 

sent  the  goods  to  Jones,  without  giving  him  notice  that  the  goods 

were  supplied  by  him  and  not  by  Brocklehurst.     It  was  held 

that  Boulton  could  not  maintain  an  action  against  Jones  for  the 

price  (0). 

The  grounds  for  equitable  relief  in  the  case  of  mistakes  of  fact  Keliei*  in 
are  "  that  mistake  or  ignorance  of  facts  in  parties  is- a  proper  equity, 
subject  of  relief  only  where  it  constitutes  a  material  ingredient 
in  the  contract  of  the  parties,  or  disappoints  their  intention  by  a 
mutual  error;  or  where  it  is  inconsistent  with  good  faith,  and 
proceeds  from  a  violation  of  the  obligations  which  are  imposed 
by  law  upon  the  conscience  of  either  party.  But  where  each 
party  is  equally  innocent,  and  there  is  no  concealment  of  facts 
which  the  other  party  has  a  right  to  know,  and  no  surprise  or 
imposition  exists,  the  mistake  or  ignorance,  whether  mutual  or 
unilateral,  is  treated  as  laying  no  foundation  for  equitable  inter- 
ference" (]>). 

Money  paid  with  a  knowledge  of  all  the  facts  but  under  a  iqnoranlia 
mistake  OF  THE  LAW,  or,  like  Mr.  Marriott,  by  compulsion  of  legis  non 
legal  proceedings,  cannot  in  general  be  recovered  back,  there  be-  excusat. 
ing  nothing  against  conscience  in  the  other  retaining  it.     Igno- 
rantia  juris  non  exeusat.     A  ship  captain  brought  home  in  his  ship  Timrina  the 
a  quantity  of  treasure,  and,  when  he  got  to  England,  paid  over  a  Admiral, 
certain  portion  of  it  to  the  admiral  under  whose  convoy  he  had 
sailed;  not.  if  you  please,  in  a  spirit  of  gratitude,  but  believing 
that  lie  was  bound  by  lain  to  pay  it.     But  he  wasn't;  and,  when  he 
found  that  out,  he  brought  an  action  to  try  and  get  it  back  again. 
But  it  was  held  he  could  not  get  it  back  again,  for  he  had  gone 
wrong  in  his  law,  not  in  his  facts  (q).     "  Every  man,"  said  Lord 
Ellenborough,  in  Bilbie  v.   Lumley  (r),   (where  an  underwriter 
tried  to  get  back  some  money  he  had  paid  as  for  a  loss,  saying  he 
had  not  understood  the  legal  effect  of  a  particular  document) 
"must  be  taken  to  be  cognisant  of  the  law ;  otherwise  there  is  no  say-  Everybody 
ing  to  what  extent  the  excuse  of  ignorance  might  not  be  carried.     It  knows  the 
■  would  be  urged  in  almost  every  case."  aw' 

In  Miles  v.  Scotting  (s),  it  was  held  by  Stephen,  J.,  that  the 
doctrine  that  money  paid  under  a  mistake  cannot  be  recovered 

(o)  Boulton  v.  Jones,  2   H.  &  Pott,  4  H.  &  N.  759,  and  Rog- 

N.  564,  followed  in  the  Ameri-  ers  v.  Ingham,  3  Ch.  Div.  .'551. 

can  case  of  Boston  Ice  Company  O)  2    East,    469.     See,  how- 

v.  Potter,  123  Mass.  28.  ever,  ex  parte  Simmonds,  34  W. 

(p)  Snell's  Equity,  p.  377.  R.   421,    and    remarks  of  Lord 

(if)  Brisbane    r.      Dacres,      5  Esher,  M.  R. 

Taunt.    143;  and  see  Barber  v.  (s)  1  C.  &  E.  491. 


212 


RECOVERY    OF    MONEY    PAID    UNDER    MISTAKE,  ETC. 


Abuse  of 
legal  process. 


Landsdowne 
v.  Lands- 
downe. 


Other  cases. 


baek  unless  the  mistake  he  one  of  fact,  applies  even  though  the 
person  receiving  the  payment  be  one  of  the  persons  authorising 
it  to  be  made. 

It  is  to  be  observed,  however,  that  to  make  money  paid  under 
compulsion  of  legal  proceedings  irrecoverable,  the  proceedings 
must  be  regular,  and  not  a  mere  cloak  for  extortion.  A  person 
named  Collins,  who  was  quite  insolvent,  had  the  impudence  to 
arrest  a  continental  duke  for  an  imaginary  debt  of  £10,000.  The 
continental  duke  was  incontinently  frightened — probably  he  had 
heard  that  debtors  in  England  Avere  always  ordered  off  to  instant 
execution — and  paid  £500  for  his  release.  He  afterwards  brought 
an  action  to  recover  the  money,  and  was  held  entitled  to  do  so  (i). 
"It  is  clear,"  said  Coleridge,  J.,  "that,  if  money  be  paid  with 
full  knowledge  of  facts,  it  cannot  be  recovered  back.  It  is  clear, 
too,  that  if  there  be  a  bond  fide  legal  process,  under  which  money 
is  recovered,  although  not  actually  due,  it  cannot  be  recovered 
back,  inasmuch  as  there  must  be  some  end  to  litigation.  That 
is  the  substance  of  the  decisions.  But  no  case  has  decided  that, 
when  a  fraudulent  tise  has  b<en  made  of  legal  process,  both  parties 
knowing  throughout  that  the  money  claimed  was  not  due,  the 
party  paj'ing  under  such  process  is  not  to  have  the  assistance  of 
the  law." 

So,  resting  on  the  ground  of  a  presumption  that  there  must 
have  been  fraud  or  undue  influence  of  some  kind,  there  is  a  well 
known  doctrine  of  equity  that  if  a  person,  acting  in  ignorance 
of  a  clear  and  elementary  principle  of  Ian;  parts  with  a  portion  of  his 
property,  he  will  be  relieved  from  the  consequences  of  his  mis- 
take. Thus,  in  Landsdowne  v.  Landsdowne  (u),  an  uncle  having 
a  difference  of  opinion  with  the  son  of  his  elder  brother  as  to  the 
right  to  inherit  an  estate,  they  both  agreed  to  go  by  the  decision 
of  the  schoolmaster.  That  worthy  person,  acting  on  the  maxim 
that  "land  cannot  ascend,  but  always  descends,'1''  pronounced  in 
favour  of  the  uncle  ;  but  it  was  held  that,  the  mistake  being  so 
great  as  to  suggest  fraud,  the  nephew  was  entitled  to  relief 
"Where,  however,  the  mistake  arises  on  a  doubtful  point  of  law, 
aiair  compromise  will  be  upheld;  and  it  is  on  this  ground  that 
the  whole  doctrine  of  the  validity  of  family  compromises  of 
doubtful  rights  rests.  But  in  such  cases  there  must  be  a  full 
communication  of  all  the  material  circumstances  known  (.<). 

The  following  cases  may  also  be  referred  to  on  the  subject- 
matter  of  this  note  :— Reg.  v.  Prince,  L.  R.  2  C.  C.  R.  154;  Fos- 
ter v.  Mackinnon,  L.  R.  4  C.  P.  704;  Mitchell  v.  Lapage,  Hoi?, 
N.  P.  253;  Hunter  v.  Walters,  7  Ch.  75;  Freeman  v.  Jeffries,  L. 
R.  4  Ex.  189  ;  Turner  v.  Turner,  14  Ch.  D.  829;  and  Green  v. 
Duckett,  11  Q.  B.  D.  275. 

(0  Cadaval  v.  Collins,  4  A.  &  (x)  Gordon  v.  Gordon,  3 
E.  858.  Swanst,  463. 

(u)  2  Jac.  &  Walker,  205. 


SUING  BEFORE  THE  DAY  OF  PERFORMANCE.  213 


Suing  Before  the  Day  of  Performance. 

HOCHSTER  v.  DE  LA  TOUR.  [89.J 

[2  E.  &  B.  678  (1853).] 

Mr.  de  la  Tour,  meditating  a  visit  to  the  Continent, 
engaged  Hochster  as  bis  courier  at  £10  a  month,  the 
service  to  commence  on  June  1st.  Before  that  day  came, 
however,  Mr.  de  la  Tour  altered  his  mind,  and  told  Hoch- 
ster he  did  not  want  him.  Without  wasting  words  or 
letting  the  grass  grow  under  his  feet,  and  before  June 
1st,  Hochster  issued  bis  writ  in  an  action  for  breach  of 
contract.  For  De  la  Tour  it  was  argued  that  Hochster 
should  have  waited  till  June  1st  before  bringing  his 
action,  for  that  the  contract  could  not  be  considered  to 
be  broken  till  then.  It  was  held,  however,  that  the 
contract  had  been  sufficiently  broken  by  De  la  Tour's 
saying  definitely  that  he  renounced  the  agreement. 

Generally  speaking,  no  action  for  the  breach  of  an  executory 
contract  can  be  brought  till  the  day  of  performance  arrives.  But 
if  one  of  the  parties  puis  it  out  of  his  power  to  perform  it,  or  ex- 
pressly renounces  the  contract,  the  day  of  performance  need  not  be 
waited  for. 

If  a  young  lady  agrees  to  marry  me  on  May  10th,  and,  in  de-  Putting  it 
fiance  of  that  arrangement,  marries  Jones  on  April  1st,  I  may  out  of   power 
bring  an  action  agaidst  her  as  soon  as  I  like  after  April  1st,  al-  to  perform, 
though  it  is  quite  on  the  cards  that  before  May  10th,  comes  she 
may  be  a  widow  and  quite  at  my  service  (»/). 

So,  too,  of  an  express  renunciation.  A  few  days  ago  a  man  told  Distinct  re- 
his  girl  that,  though  he  could  not  do  so  immediately,  he  would  Puliation. 
marry  her  directly  his  father  died.  Soon  afterwards  he  repented  of 
this  promise,  and,  in  the  lifetime  of  his  father,  told  the  young 
lady  frankly  that  he  retracted  his  promise,  and  did  not  intend 
ever  to  marry  her.  The  judges,  following  Hochster  v.  De  la  Tour, 
decided  that  the  contract  was  broken  immediately  on  the  defend- 

(y)  Short  v.  Stone,  8  Q.  B.  358. 


214  SUING  BEFORE  THE  DAY  OF  PERFORMANCE. 

ant's  renouncing  it  in  the  brazen-faced  way  he  did  (a).  The  re- 
nunciation however,  to  entitle  the  plain! iff  to  sue,  must  be  pre- 
cise and  clear  (a). 
Exoneration  In  an  ;u'llon  1(,r  not  accepting,  or  for  not  delivering,  goods  ac- 
hy breach.  cording  to  contract,  it  often  becomes  a  practical  question  whether 
a  partial  breach  by  one  party  exonerates  the  other  from  further 
performance.  In  Simpson  v.  Crippin  (b),  where  goods  were  to  be 
delivered  by  the  defendant  to  the  plaintiff  in  twelve  equal  monthly 
parcels,  it  was  held  that  the  refusal,  only,  of  the  plaintiff  to 
accept  the  first  parcel  did  not  exonerate  the  defendant  from  de- 
livering the  remaining  parcels.  And  in  Freeth  v.  Burr  (c),  where 
the  delivery  was  to  be  by  two  equal  parcels,  the  defendant  was 
held  not  to  be  released  from  the  delivery  of  the  second  parcel  by 
the  plaintiff  having  refused  to  pay  for  the  first  in  accordance  with 
the  contract.  The  true  question  in  each  case  is  whether  (he  con- 
duel  of  the  one  party  amounts  or  not  to  an  intimation  oj  intention  to 
abandon  and  altogether  refuse  performance  [d).  In  America  the  law 
appears  to  be  fairly  settled  in  accordance  with  the  decision  in 
Simpson  v.  Crippin— viz.,  that,  in  the  absence  of  any  expressed 
intention  of  the  parties,  a  contract  for  the  sale  of  goods  by  suc- 
cessive deliveries  is  severable,  and  the  failure  to  accept  or  deliver 
one  instalment  does  not  entitle  the  other  party  to  refuse  delivery 
or  acceptance  of  the  instalments  that  remain  (e). 


[90.] 


DlscJiarge  of  Servants. 

TURNER  v.  MASON. 
[14  M.  &W.  112  (1845).] 

Turner  was  housemaid  in  the  defendant's  service. 
Her  mother  became  ill  and  likely  to  die,  and  Turner 
asked  her  master's  permission  to  go  and  see  her.  Mason 
refused  it  ;  so  the  girl  went  without  it.  For  this  diso- 
bedience Mason  dismissed  her,  and  she  now  brought  an 

(z)  Frost  v.   Knight,  L.    R.  7  upon  a  refusal  by  one,  party  to 

Ex.    Ill  ;    and    see    Cherry    v.  perform  a    particular  covenant 

Thompson,  L.   R.  7  Q.   B.  579,  the  other  cannot  put  an  end  to 

and  Roper  v.  Johnson,  L.   R.  8  the  contract  in  its  entirety. 

C.  P.  167.  (b)  L.  R.  8  Q.  B  14,  overrul- 

(«)  See  Avery  v.  Bowden,   6  ing  Hoare  v.  Rennie,  5  H.  &N. 

E.  &  B.  962.     In  Johnstone  v.  19,  and  see  Houck  v.  Muller,  7 

Milling,  55  L.  J.,  Q.  B.  D.  162,  Q.  B.  92. 

it  was ""  quasred*"  whether  the  (e)  L.  R.  9  C.  P.  208. 

doctrine  of  the  leading  case  as  (d)  Mersey  Steel  and  Iron  Co. 

to  anticipatory  breach  of  con-  v.  Naylor,  9  App.  Ca.  434. 

tract  applies  to  a  covenant  in  a  (e)  Benj.  on  Sale  (3rd  ed.)  p. 

lease    containing    many    cove-  589. 
nants,   or    to    any  case  where 


DISCHARGE    OF    SERVANTS.  215 

action  for  wrongful  dismissal,  urging  that  it  was  a 
moral  duty  to  go  and  visit  a  dying  mother.  Judgment, 
however,  was  given  for  the  defendant,  on  the  ground 
that  the  girl  had  been  guilty  of  wilful  disobedience,  for 
which  her  master  had  a  right  to  dismiss  her. 

Similarly,  a  master  has  been  held  to  be  justified  in  dismissing  Disobedi- 
a  servant  where  a  farm  servant  refused  to  work  at  dinner  time  ( /),  ence. 
or  refused  to  work  during  harvest  without  beer  {g)\  where  a 
sailor  refused  to  work  the  ship  except  to  an  English  port  (/<);  and 
where  the  messman  of  a  regiment  refused  to  send  up  dinner  (i). 
On  the  other  hand,  a  servant  is  entitled  to  disobey  unlawful  com- 
mands. "If  the  plaintiff's  wife,"  said  Parke,  B.,  in  one  case  (A:) 
"had  been  requested  to  work  during  church  time  [at  the  trade 
of  a  dyer],  and  had  obstinately  refused,  that  would  have  been  to 
her  credit."  And  occasional  disobedience  in  matters  of  trifling 
importance,  such  as  not  answering  a  bell,  or  stopping  at  one  hotel 
when  told  to  stop  at  another,  will  not  warrant  a  master  in  dis- 
missing without  notice  (/),  though,  of  course,  he  will  take  the 
earliest  opportunity  of  terminating  so  unsatisfactory  a  connection. 

In  addition  to  the  case  of  wilful  disobedience,  a  servant  may 
be  discharged  without  wages  or  notice  in  the  following  cases: — 

(1.)  "When  he  has  been  guilty  of  gross  moral  misconduct.  Misconduct. 

Of  course,  morality  is  matter  of  degree  and  opinion  ;  what  a 
man  of  the  world  would  treat  lightly,  an  old  maid  might  con- 
sider very  wicked.  But  about  some  things  everybody  would 
agree.  Thus,  if  a  servant  is  in  the  habit  of  getting  drunk  (///), 
or  robs  his  master  (n),  or  tries  to  ravish  the  cook  (o),  he  can  be 
turned  out  of  the  house  at  once.  Whether  a  maid-servant  can 
be  discharged  for  pregnancy  (;>),  or  a  man-servant  for  becoming 
the  father  of  a  bastard  (q),  is  more  doubtful.  It  is  not  any  ex- 
cuse that  the  immorality  was  not  in  any  way  connected  with 
the  master's  business,  and  could  not  prejudice  it.  But  the  dis- 
covery of  a  servant's  dishonesty  in  a  previous  situation  is  not 
alone  sufficient  ground  of  dismissal  (r). 

The  recent  case  of  Pearce  i».  Foster  (s)  was  an  action  for  wrong- 


(/)  Spain  v.  Arnott,  2  Stark.         (m)  Wise  v.  Wilson,  1   C.    & 

256.  K.  662. 

{g)  Lilley  v.  Elwin,  11  Q.  B.         (»)  Baillie  v.  Kell,  4  Ping.  X. 

742.  C.  638. 

(h)  Eenno  v.  Bennett,  3  Q.  B.         (o)  Atkin  v.  Acton,  4  C.  &  P. 

768.  208. 

(i)  Churchward  v.  Chambers,         (  p)  Connors  v.  Justice,  13  Ir. 

2F.  &  F.  229.  C.  L.  R.  451. 

(k)    Jacquot    v.     Bourra,    7        (<y)  E.  v.  Welford,  Cald.  ">7. 
Dowl.  348.  (r)  Andrewes  v.   Garstin,  31 

(/)  Callo  v.   Brouncker,  4  C.  L.  J.,  C.  P..  15. 
&  P.  518.  (s)  53  L.  T.,  N.  S.  867. 


216  DISCHARGE   OF   SERVANTS. 

ful  dismissal.  The  defendants  were  general  merchants  and  com- 
mission agents,  and  the  plaint  ill'  had  been  their  confidential  clerk. 
They  dismissed  him  because  they  found  that  he  was  speculating 
in  a  wild  sort  of  way  on  the  Stock  Exchange,  and,  although  he 
had  continued  to  discharge  his  duties  in  a  thoroughly  efficient 
manner,  they  did  not  feel  that  they  could  repose  further  confi- 
dence in  him.  It  was  held  that  the  defendants  were  perfectly 
justified  in  having  dismissed  him.  "If  a  man,"  said  Grove,  J., 
' '  goes  to  literary  meetings,  or  does  anything  which  he  fairly  may 
do  in  his  leisure  hours,  that  would  not  be  anything  like  ground 
for  dismissal ;  but  a  man  dealing  beyond  his  means,  speculating, 
as  it  has  been  proved,  to  such  an  enormous  extent,  and  employ- 
ing his  time  in  constantly  finding  out  how  he  may  make  gains 
by  these  speculations  in  differences,  appears  to  me  to  be  a  man 
who  is  totally  unfit  for  such  an  employment  as  he  undertook  to 
carry  on,  and  I  have  not  the  slightest  doubt  that  a  reasonable 
and  prudent  man  would  never  have  thought  of  employing  a  man 
in  that  position.  .  .  .  His  conduct  with  regard  to  the  mat- 
ter and  his  secrecy — for  I  am  of  opinion  that  it  was  kept  from 
his  employers — was  wholly  inconsistent  with  the  nature  of  the 
service  which  he  was  to  perform,  and,  therefore,  if  it  is  necessary 
to  go  within  the  literal  words  used  by  learned  judges  in  these 
cases,  I  think  he  was  thereby  guilty  of  such  moral  misconduct 
as  is  a  good  ground  of  discharge.  I  am  of  opinion  that  it  was  a 
breach  of  moral  duty  to  engage  himself  in  such  speculations  at 
such  a  risk,  and  that  it  was  incompatible  and  inconsistent  with 
his  employment,  and  that  no  employer  ought  to  be  expected  to 
keep  a  servant  wTho  so  conducted  himself.  There  is  no  evidence 
of  it,  but  it  would  also,  in  my  judgment,  tend,  and  tend  very 
much,  to  bring  the  employers'  character  and  business  into  disre- 
pute, because,  if  it  were  known  that  a  clerk  in  a  respectable  firm, 
doing  a  large  and  important  business,  was  perpetually  on  the 
Stock  Exchange  speculating  in  differences  and  dealing  in  this 
way,  it  appears  to  me  it  was  calculated  to  bring  the  business  into 
disrepute,  and  to  seriously  injure  the  status  of  his  employers 
and  their  business.  I  have  taken  time  to  consider  the  case,  be- 
cause it  appears  to  me  to  be  quite  a  new  case.  There  is  no  case 
which  is  directly  in  point  on  the  subject,  and  therefore  this  is  a 
case  to  some  extent  primes  impressionis." 
Inattention.  (2.)  When  he  docs  not  give  proper  attention  to  his  master's  busi- 
ness. 

If,  for  instance,  a  servant,  like  a  policeman,  is  never  found 
when  wanted,  and  often  sleeps  out  without  leave;  he  maybe  dis- 
charged (/);  but  not  for  a  mere  temporary  absence  producing  no 
serious  inconvenience  to  the  master;  e.g.,  if  the  French  teacher 
returns  to  school  aft«r  the  holidays  a  day  or  two  after  the  time 

(<)  Robinson  v.  Hindman,  3  Esp.  235. 


i  DISCHARGE    OF    SERVANTS.  217 

of  reassembling,  the  school  business  not  having  boon  thereby 
sapended  or  impeded  («).  "  It  is  a  question  of  fact,"  said 
Vaughan,  J.,  in  a  case  [x)  where  the  acting  manager  of  Covent 
Garden  theatre  brought  an  action  for  wrongful  dismissal, 
"whether  the  plaintiff  was  so  conducting  himself  as  that  it 
it  would  have  been  injurious  to  the  interests  of  the  theatre  to  have  kept 
him.  If  he  was,  I  should  have  no  difficulty  in  saying  that  it 
would  be  good  ground  of  dismissal." 

(3.)  When  he  is  not  up  to  his  work.  Incompe 

"The  public  profession  of  an  art,"  said  Willes,  J.,  in  Harmer  tence. 
v.  Cornelius  (y),  where  a  man  had  been  engaged  as  a  scene- 
painter,  "  is  a  representation  and  undertaking  to  all  the  world 
that  the  professor  possesses  the  requisite  ability  and  skill.  An 
express  promise  or  express  representation  in  the  particular  case 
is  not  necessary.  It  may  be,  that  if  there  is  no  general  and  no 
particular  representation  of  ability  and  skill,  the  workman  un- 
dertakes no  responsibilty.  If  a  gentleman,  for  example,  should 
employ  a  man  that  is  known  never  to  have  done  anything  but 
sweep  a  crossing  to  clean  or  mend  his  watch,  the  employer 
probably  w.ould  be  held  to  have  incurred  all  risk  himself."  So 
a  clerk  could  not  be  discharged  because  he  could  not  drive;  he 
might  fairly  reply  "nun  haec  in  foedera  veni." 

Illness,  if  permanent,  is  ground  tor  dismissal;  but  not  if  merely 
temporary  (z). 

(4.)  When  he  claims  to  be  a  partner.  Claim  to  be 

The  common  sense  of  this  ground  of  dismissal  is  obvious.     Bj'  partner, 
claiming  to  be  a  partner  the  servant  has  put  himself  in  a  position 
inconsistent  with  that  in  respect  of  which  he  claims  wages  (a). 

So,  too,  a  servant  may  be  dismissed  for  trying  to  dissuade  his 
master's  customers  or  clients  from  dealing  with  him  (b). 

Although  the  master  may  not  have  assigned  any  one  of  these 
reasons  at  the  time  of  the  dismissal,  and  may  not  even  have 
known  that  such  reason  existed,  he  is  not  thereby  precluded 
from  relying  on  one  of  them  when  the  servant  brings  his  action 
for  wrongful  dismissal  (c).  But  if  a  master  condones  an  act  of 
misconduct  which  would  have  justified  him  in  discharging  his 
servant,  he  cannot  afterwards  discharge  him  for  the  same  act(rf). 

A  servant  discharged  for  an  act  of  misconduct  does  not  forfeit  Discharged 
his  title  to  wages  already  accrued  due.     If  a  man.  for  instance,  is  servant's 
engaged  at  a  salary  of  £50  a  month,  there  is  a  vested  right  which  nght  to 
cannot  be  affected  by  subsequent  misconduct  to  the  £50  at  the       ° 

(u)  Filleul  v.    Armstrong,   7  E.  548. 

A.  &  E.  557.  (b)  Mercer  v.  Whall,  5  Q.  B. 

{x)  Lacy  v.  Osbaldiston,  8  C.  447. 

&  P.  80.  (c)  Ritlgway  v.    Hungerford 

(y)  5  C.  B.,  N.  S.  236.  Market  Co.,  3  A.  &  E.  171. 

(z)  Cuckson  v.   Stones,  1  E.  (d)  Per    Blackburn,    J.,    in 

&  E.  248.  Phillips  v.  Foxhall,  L.  R.  7  Q. 

(a)  Amor  v.   Fearon,  9  A.  &  B.  G80. 


21S  DISCHARGE    OF    SERVANTS. 

end  of  each  month  (r).     The  terms  of  the  hiring,  however,  may 
have  disturbed  this  right  (/).     As  to  wages  accruing  but  not  yet 
accrued  due,  a  servant  discharged  for  misconduct  cannot  recover 
anything  for  the  portion  of  the  term  he  has  served. 
Notice.  A  word  may  be  said  as  to  the  notice  which  -servants  are  en- 

titled to.  If  the  hiring  is  a  general  one,  it  is  presumed  to  be  for 
a  year,  and  the  servant  cannot  be  dismissed  (except,  of  course, 
for  misconduct)  till  the  year  has  expired  (g).  Custom  and 
special  circumstances,  however,  may  rebut  this  presumption. 
Thus,  if  the  wages  are  payable  weekly,  it  may  be  found  a  weekly 
hiring,  and  a  week's  notice  is  sufficient  (h).  A  clerk  can  be  dis- 
charged with  three  months'  notice,  and  a  menial  servant  with 
one.  The  term  "menial  servant"  has  been  held  to  include 
a  head  gardener  residing  in  a  detached  house  in  his  master's 
grounds  (/),  and  a  huntsman  (A-),  but  not  a  governess  (/).  In 
the  case  of  an  advertising  agent,  a  month's  notice  was  found  to 
be  sufficient  (m).  In  Yibert  v.  Eastern  Telegraph  Co.  (n),  the 
plaintiff  was  a  stationery  clerk  in  a  telegraph  office  at  a  salary  of 
£135.  payable  fortnightly.  On  its  being  left  to  the  jury  to  say 
what  was  a  reasonable  notice  to  a  person  in  his  position,  they 
found  that  a  month  was.  An  indefinite  hiring  by  piece  work 
cannot  be  considered  a  yearly  hiring  (o). 
Must  try  to  It  is  to  be  observed  that  a  servant  wrongfully  dismissed  is  not 
get  other  em-  to  receive,  as  a  matter  of  course  his  full  wages  for  the  unexpired 
ploymeut  term.  The  amount  is  to  be  cut  down  by  his  chances  of  getting 
other  employment,  and  he  is  expected  to  do  his  best  to  get  such 
other  employment  {p) 

In  Gordon  v.  Potter  (q)  it  was  held  that  a  domestic  servant  (a 
cook  accused  of  drunkenness)  discharged  without  reason  was  en- 
titled to  the  wages  accruing  up  to  the  time  of  her  discharge,  and 
to  a  calender  month's  wages  in  addition,  but  not  to  board  wages 
for  the  month. 
Wrongful  As  to  the  master's  right  to  bring  an  action  against  his  servant 

dismissal  of    for  improperly  quitting  the  service,   see  Lees  v.  Whitcomb,   5 
master.  Bing  34;  Messiter  1K  Eose?  13  c.  B.  162;  and  Holmes  ».  Onion, 

2  C.  B.,  N.  S.,  79.  As  to  his  right  to  sue  a  third  person  who  in- 
Seduction  of  terrupts  the  relation,  see  Terry  v.  Hutchinson,  p.  309;  and  Lum- 
servant.  ley  v.  Gye,  p.  359. 

(c)  Button  v.   Thompson,  L.  (I)  Todd   v.    Kerrich,  8   Ex. 

E.  4  C.  P.  330.  151. 

(/■)  See  Walsh  v.  Wallev,  L.  (m)  Hiscox  v.  Batchellor,  15 

E.  9  Q.  B.  367.  L.  T.,  N.  S.,  543. 

(17)  Buckingham     r.    Surrey  («)  1  C.  &  E.  17. 

Canal  Co.,  W.  N.  (1882),  p.  104.  (0)  E.  v.  Woodhurst,  1  B.  & 

(h)  Baxter  v.  Nurse,  6  M.  &  Aid.  325. 

G.  935.  (p)  Hartland  v.  General  Ex- 

(i)  Nowlanr.  Ablett,  2  C.  M.  change  Bank,  14  L.  T.,   N.  S., 

&  E.  54.  863. 

(it)  Nicholl  v.  Greaves,  17  C.  {q)  1  F.  &  F.  644. 
B.,  N.  S.,  27. 


BILLS    OF    SALE,    ETC.  219 


Bills  of  Sale,  &c. 


TWYNE' S  CASE. 
[3  Rep.  80  (1585).] 

A  Hampsliire  farmer  named  Pierce  got  deeply  into 
debt  ;  and  amongst  his  creditors  were  two  persons 
named  Twyne  and  Grasper.  To  the  former  he  owed 
£400  and  to  the  latter  £200.  After  repeatedly  diinning 
the  farmer  in  vain,  Grasper  decided  to  go  to  law  for  his 
money,  and  had  a  writ  issued.  As  soon  as  Pierce  heard 
of  this,  he  took  the  other  creditor,  Twyne,  into  his  con- 
fidence, and  in  satisfaction  of  the  debt  of  £400  made  a 
secret  conveyance  to  him  of  everything  he  had.  In 
spite  of  this  deed,  however, — in  pursuance  of  the  ne- 
farious arrangement  between  them, — Pierce  continued 
in  possession  just  as  if  he  had  never  made  it,  He  sold 
some  of  the  goods,  sheared  and  marked  some  of  the 
sheep,  and  in  everyway  acted  as  if  he  were  the  monarch 
of  all  he  surveyed  and  Twyne  had  nothing  to  do  with 
it.  Meanwhile  Grasper  went  on  quietly  with  his  action, 
got  judgment  and  consequently  the  assistance  of  the 
sheriff  of  Southampton,  who  appeared  one  day  at  the 
homestead  with  the  intention  of  carrying  off  in  Mr. 
Grasper's  interest  whatever  he  might  chance  to  find 
there.  This  proceeding  Twyne,  who  suddenly  appeared 
on* the  scene,  strongly  objected  to,  for,  said  he, — "every- 
thing on  this  farm  belongs  to  me,  not  to  Pierce," — and, 
in  proof  of  his  assertion,  he  produced  the  deed  of  con- 
veyance. 

The  question  was  whether  this  deed  of  conveyance 
was  void  within  the  meaning  of  an  Act  of  Parliament 
passed  in  Queen  Elizabeth's  reign,  which  provides  that 
all  gifts  made  for  the  purpose  of  cheating  creditors 


[91.] 


220  BILLS    OF   SALE.   ETC. 

shall  be  void.  And,  for  the  following  reasons,  this  gift 
of  Pierce's  was  considered  to  be  just  the  kind  of  gift 
contemplated  by  the  statute: — 

(1.)  It  was  impossible  that  anybody  could  really  be 
so  generous  as  Mr.  Pierce  had  proposed  to  be.  He  had 
given  away  everything  he  had  in  the  world,  even  down 
to  the  boots  he  was  wearing.  Such  self-denial  could 
only  be  the  cloak  of  fraud. 

(2.)  In  spite  of  his  parade  of  liberality,  Mr.  Pierce 
did  not  let  one  of  his  things  go,  but  used  them  all  just 
as  if  they  were  his  own,  thereby  obtaining  a  factitious 
credit  in  the  world. 

('■>. )  Then,  if  there  was  no  fraud,  why  was  there  so 
much  mystery  about  it?  Why  wasn't  the  gift  made 
openly  ? 

(4.)  The  gift  was  made,  too,  when  Grasper  had  al- 
ready commenced  an  action,  and  evidently  meant  busi- 
ness 

( 5. )  There  was  a  trust  between  the  parties,  and  trust 
was  only  another  name  for  fraud. 

(6.)  The  deed  alleged  that  the  gift  was  made  "hon- 
estly, truly,  and  bond  fide"  and  that  was  a  very  sus- 
picious circumstances  in  itself. 

Gifts  dc-  *f  *3  (lec^are(l  by  13  Eliz.  c.  5,  that  all  gifts  and  conveyances, 

frauding  whether  of  lands  or  chattels,  made  for  the  purpose  of  delaying  or 

creditors.         defrauding  creditors,  shall  he  null  and  void  as  against  such  cred- 
itors.    There  is,  however,  a  proviso  excepting  from  the  operation 
of  this  enactment  gifts  and   conveyances   made  upon  valuable 
consideration   and  bond  fide  to  persons  having  no  notice  of  the 
fraud.     Now,  it  is  clear  that  Farmer  Pierce's  gift  was  for  valu- 
able  consideration.     Why,  then,  did  it  not  fall  within  the  pro- 
A*iso?     The  answer  obviously   is,  because  it  was  not  bond  fide. 
It  was  merely  the  creation  of  a  trust  for  the  benefit  of  Pierce 
himself. 
Fraud  some-       ^a  ort^er  ^at  a  mere  voluntary  settlement  may  be  void  within 
times  pre-        the  statute  it  is  not  necessary  to  prove  that  an  actual  intention 
suined.  to  delay  or  defraud  his  creditors  was  present  to  the  mind  of  the 

settlor  at  the  time  when  the  deed  was  executed.  It  is  sufficient 
to  set  aside  such  a  gift  as  fraudulent  if  the  necessary  consequence 
of  it  is  so  to  delay  or  defraud  the  creditors  (r).     In  such  case  the 

(r)  Freeman  r.  Pope,  L.  J„  39  Ch.  689. 


BILLS    OF    SALE.    ETC.  221 

fraudulent  intention  will  be  presumed  to  exist.  Thus,  a  man 
who  contemplates  entering  upon  ;i  hazardous  business  cannot,  on 
the  eve  of  doing  so,  take  the  bulk  of  his  property  out  of  the  reach 
of  those  who  may  become  his  creditors  in  his  trading  operations 
by  settling  it  upon  his  wife  and  children  (s).  It  may,  too,  be 
noticed  that  provision  is  made  by  the  Bankruptcy  Act,  1869.  sec. 

91,  for  the  avoidance,  in  most  cases,  of  voluntary  settlements 
made  by  a  trader  within  two  years  of  his  bankruptcy,  or.  indeed, 
within  ten  years,  li  unless  the  parties  claiming  under  such  set- 
tlement can  prove  that  the  settlor  was,  at  the  time  of  making 
the  settlement,  able  to  pay  all  his  debts  without  the  aid  of  the 
property  comprised  in  such  settlement." 

It  is  extremely  important  that  the  student  should  understand  Fraudulent 
that  a  deed  is  not  necessarily  void  because  it  amounts  to  an  as-  preference, 
signment  of  all  the  grantor's  property  for  the  benefit  of  a  particu-i 
lar  creditor  or  of  particular  creditors.  There  is  nothing  at  com- 
mon law  to  prevent  a  debtor  preferring  one  creditor  to  another, 
imd  the  statute  of  Elizabeth  does  not  touch  the  question  of  equal 
distribution  of  assets.  "  If  the  deed  is  bond  fide — that  is,  if  it  is 
not  a  mere  cloak  for  retaining  a  benefit  to  the  grantor — it  is  a 
good  deed  under  the  statute  of  Elizabeth  "  (t).  Such  a  deed  may, 
it  is  true,  operate  as  an  act  of  bankruptcy,  or  it  may  be  void  as 
amounting  to  a  fraudulent  preference  within  the  meaning  of  the 
bankruptcy  laws  («)  :  but,  if  the  time  be  past  within  which  the 
execution  of  the  deed  is  an  act  of  bankruptcy  available  for  adju- 
dication against  the  grantor,  or  within  which  the  deed  can  be  set 
aside  as  a  fraudulent  preference,  it  cannot  be  treated  as  void 
within  the  policy  of  the  bankruptcy  laws  (x). 

It  has  been  recently  decided  that  a  deed,  by  which  insolvent  Boldero's 
debtors  conveyed  all  their  estate  to  trustees  on  trust  for  sale  and  case, 
division  of  the  proceeds  amongst  the  creditors  parties  to  the  deed, 
was  not  void  under  the  statute  of  Elizabeth,  although  it  contained 
a  clause  leaving  it  in  the  discretion  of  the  trustees  not  to  pay  any 
dividend  to  creditors  who  had  neglected  or  refused  to  execute  the 
deed  (y).     The  court  distinguished  the  case  from  the  somewhat 
similar  one  of  Spencer  v.  Slater  (z),  where  the  deed  was  held  to  Spencer  v. 
be  void,  on  the  ground  that  in  the  latter  case  the  primary  object  Slater, 
was  to  carry  on,  not  to  sell,  the  business  ;  and  there  was,  more- 
over, in  Spencer  r.  Slater  a  peculiar  resulting  trust  under  which, 
at  the  expiration  of  twelvemonths,  the  debtor  might  apply  to  the 
trustees  to  be  paid  the  dividends  of  creditors  who  neglected  or 

(s)  Mackay  v.  Douglas,  L.  R.  (x)  Ex   parte   Gaines,    In   re 

14  Eq.  106;  ex  parte  Russell,  In  Bamford,  L.  R.   12  Ch.   D.  314. 

re  Butterworth,  L.  R.  19  Ch.  D.  {y)   Boldero   v.    Loudon   and 

568.  Westminster  Loan  Co.,  L.  R.  5 

(/)  Per  Giffard,  L.  J.,  Alton  v.  Ex.  D.  47. 

Harrison,  L.  R.  4  Ch.  Ap.  at  p.  (z)  4  Q.  B.   P.    13;   and   see 

626.  Golden  v.  Gillam,  46  L.  T.,  N. 

(u)  See  32  &  33  Vict.  c.  71,  s.  S.  222,  and  In  re  Ridler,  22  Ch. 

92.  D.  71. 
16   COMMON   LAW. 


222  BILLS    OF    RALE,    ETC. 

refused  to  assent  to  or  execute  the  deed,  and  then,  if  the  creditors 
did  not  within  seven  days  assent  or  execute,  the  money  was  to 
be  paid  to  the  debtor. 

Bills  of  sale.  The  present  subject  derives  great  interestand  importance  from 
its  connection  with  hills  of  sale,  which  are  regulated  by  special 
and  elaborate  statutory  provisions  (a).  It  is  sufficient  here  to  say 
that  a  bill  of  sale  is  an  instrument  by  which  one  man  purports  to 
grant  to  another  his  interest  in  the  goods  and  chattels  specified 
in  such  instrument.  Prior  to  the  legislation  of  modern  times, 
the  continuance  in  possession  by  the  grantor  was  viewed  as  a 
badge  of  fraud,  and  hence  as  a  circumstance  serving  to  avoid  the 
transaction  under  the  statute  of  Elizabeth.  Now,  it  was  clearly 
beneficial  that  the  owner  of  personal  property  should  be  able  to 
make  such  a  transfer  without  any  actual  change  of  possession, 
and  yet,  that  publicity  should  be  given  to  the  transaction.  This 
result  was  accomplished  by  enacting  that  a  bill  of  sale,  if  duly 
made  and  duly  registered  in  the  manner  prescribed,  should  be 
valid  whether  the  grantor  continued  in  possession  or  not,  and 
that  even  as  against  his  trustee  in  bankruptcy.  Under  the  Act 
of  1878,  the  registration  is  to  take  place  within  seven  clays,  in- 
stead of  twenty-oue,  as  formerly  :  the  consideration  is  to  be  set 
forth  in  the  bill  of  sale,  and  the  necessity  of  attestation  is  intro- 

Act  of  1882  duced.  The  recent  Act  of  1882  (6),  which  is  to  be  construed  to- 
gether with  the  1878  Act,  renders  entirely  void  every  bill  of  sale 
given  in  consideration  of  any  sum  under  £30,  or  which  is  not  duly 
attested  and  registered,  or  which  does  not  truly  set  forth  the  con- 
sideration for  which  it  was  given.  The  Act  also  supplies  a  form 
in  accordance  with  which  the  bill  of  sale  must  be  drawn,  and  pro- 
vides that  it  shall  have  attached  a  schedule  containing  an  inven- 
tory of  the  property  comprised  therein.  For  further  information 
the  student  should  refer  to  the  statutes  and  treatises  bearing  on 
the  subject.     It  may,  perhaps,  be  convenient  here  to  mention  the 

27  Eliz.  c  4  existence  of  27  Eliz.  c.  4.  That  statute,  which  is  confined  ex- 
clusively to  real  property,  is  in  favour  of  purchasers,  aud  makes 
void,  as  against  subsequent  purchasers  of  the  same  land,  all  gifts 
and  conveyances  made  with  the  intention  of  defeating  them,  or 
containing  a  power  of  revocation.  And  it  has  been  settled  by 
numerous  decisions  (c)  that  every  voluntary  conveyance  is,  by  the 
statute,  made  void  as  against  a  subsequent  bond  fide  purchaser 
for  value.  See  also  Myers  v.  Elliott,  16  Q.  B.  D.  526  ;  Goldstrom 
v.  Tallerman,  34  W.  R.  459  ;  ex  parte  Stanford,  34  W.  E.  287  ;  Da- 
vis r.  Burton,  10  Q.  B.  D.  414  ;  Consolidated  Credit  Co.  v.  Gos- 
ney,  54  L.  T.  21  :  Walrond  e.  Goldmann,  16  Q.  B.  D.  121  ;  re 
Townsend,  53  L.  T.  897. 

(a)  17  &  18  Vict.  c.  36  ;  41  &         (b)  45  &  46  Vict.  c.  43. 
42  Viet.  c.  31  ;  45  &  46  Vict.  c.         (c)  Doe  v.    Manning,  9  East, 
43.  70. 


SUING    ON    QUANTUM    MERUIT.  223 


Suing  on  Quantum  Meruit. 

CUTTER  v.  POWELL.  [92.] 

[6  T.  R.  320  (1795).] 

The  defendant  had  a  ship  which  was  about  to  sail 
from  Jamaica  to  England,  and  wanted  a  second  mate. 
In  answer  to  an  advertisement  a  suitable  person  pre- 
sented himself  in  the  shape  of  Mr.  T.  Cutter,  and  the 
defendant  gave  him  a  note  to  this  effect: — 

"  Ten  days  after  the  ship,  '  Governor  Parry,'  myself 
master,  arrives  at  Liverpool  I  promise  to  pay  to  Mr.  T. 
Cutter  the  sum  of  30  guineas,  provided  he  proceeds,  con- 
tinues and  does  his  duty  as  second  mate  in  the  said  ship 
from  hence  to  the  port  of  LiverpeoW 

The  ship  set  sail  on  July  31st,  and  arrived  at  Liver- 
pool on  October  11th,  but  on  the  voyage  Cutter  died. 
He  had  gone  on  board  on  July  31st,  and  had  performed 
his  duty  faithfully  and  well  up  to  the  time  of  his  death, 
which  occurred  on  September  20th, — that  is  to  say, 
when  more  than  two  thirds  of  the  passage  was  accom- 
plished. 

"  In  this  case,"  said  one  of  the  judges,  "  the  agree- 
ment is  conclusive;  the  defendant  only  engaged  to  pay 
the  intestate  on  condition  of  his  continuing  to  do  his 
duty  on  board  during  the  whole  voyage,  and  the  latter 
was  to  be  entitled  either  to  30  guineas  or  nothing ;  for 
such  was  the  agreement  between  the  parties." 

An  entire  contract  cannot  he  apportioned.     An  ironmonger  once  ]rn+jre  con_ 
agreed  to  make  some  dilapidated  chandeliers  "complete"  for  tract. 
£10.     He  set  to  work  on  them,  and  certainly  very  much  im- 
proved them.     But  he  did  not  make  them  "complete,"  and  there- 
fore he  did  not  succeed  in  recovering  a  farthing,  although  it  was 
quite  clear  that  the  work  he  had  done  was  worth  £5  at  least  (d). 

{d)  Sinclair  r.  Bowles.  9  B.  &  C.  92  ;  and  see  Needier  v.  Guest, 
Aleyn,  9,  and  Bates  v.  Hudson,  G  D.  &  R.  3. 


224 


SUING    ON    QUANTUM    MERUIT. 


1  >i  visible 

contract 


Employer 

breaking 

contract. 


Books  for 
boys. 


Employer 

adopting 

benefit. 


Refusal  to 
accept. 


"Extras." 


But  the  case  is  different  when  the  contract  is  not  entire,  but  divisi- 
ble. A  shipwright  agreed  to  put  a  cranky  old  coffin  of  a  vessel 
into  "thorough  repair,"  nothing  being  said  about  the  amount  or 
mode  of  payment.  The  shipwright  began  the  job.  but,  getting 
distrustful  of  his  employers,  he  declined  to  go  on  with  it  unless 
he  was  paid  for  what  had  already  been  done.  He  was  success- 
ful in  his  demand,  the  court  distinguishing  the  case  from  Sinclair 
v.  Bowles  (e),  on  the  ground  that  there  the  contract  was  to  do  a 
specific  work  for  a  specific  sum,  whereas  here  there  was  nothing 
amounting  to  a  contract  to  do  the  whole  repairs  and  make  no  demand 
till  they  tvere  completed  (/).  The  workman,  moreover,  will  not 
lose  his  pay  because,  while  the  goods  are  still  in  his  custody, 
they  are  accidentally  destroyed,  so  that  the  employer  gets  no 
benefit  from  the  work  (g) . 

Generally  speaking,  when  the  contract  is  entire,  there  are  only 
two  cases  in  which  the  plaintiff  can  demand  payment  on  a  quantum 
meruit  without  having  wholly  performed  his  part  of  the  contract. 

(1.)  Where  the  defendant  has  absolutely  refused-  to  perform,  or  has 
incapacitated  himself  from  performing  his  part  of  the  contract. 

In  such  a  case  it  is  not  ihe  plaintiff's  fault  that  he  has  not  per- 
formed his  part  of  the  contract,  and  it  would  be  obviously  unjust 
that  he  should  suffer  by  the  faithlessness  of  the  party  he  con- 
tracted with.  A  literary  gentleman  once  undertook  to  write  a 
treatise  on  Ancient  Armour  for  the  "Juvenile  Library."  But 
the  "Juvenile  Library"  proved  so  little  successful  that  its  pro- 
moters resolved  to  abandon  it,  whereby  the  literary  gentleman, 
who  had  taken  several  journeys  to  examine  specimens  of  armour, 
and  had  written  several  chapters  of  his  proposed  work,  was  dam- 
nified to  the  extent  of  £50.  It  was  held  that,  as  the  special  con- 
tract was  at  an  end  and  broken  by  the  defendants,  the  plaintiff 
might  sue  on  a  quantum  meruit  (h). 

(2.)  Where  work  has  been  done  under  a  special  contract,  though  not 
in  strict  accordance  with  its  terms,  and  the  defendant  has  derived  a 
benefit  from  if  under  such  circumstances  as  to  raise  an  implied  prom- 
ise to  pay  for  if. 

In  this  case,  however,  the  employer  may  refuse  to  accept  the 
work  done,  it  is  only  when  he  does  accept  and  take  the  benefit, 
of  it  that  he  may  be  sued  on  a  quantum  meruit,  and  if  the  work 
done  is  of  such  a  nature  {e.g.,  buildings  on  the  employer's  own 
land)  that  it  cannot  be  rejected,  there  is  no  implied  promise  to 
pay  for  it  (i). 

In  building  contracts  there  is  often  a  deviation  from  the  original 
plan  by  consent  of  the  parties.  The  rule  as  to  the  workman's 
payment  for  the  extras  so  entailed  is  that  the  original  contract  is 


(e)  Supra. 

(  f  I  Roberts  v.  Havelock,  3  B. 
&  Ad.  404. 

(g)  Menetone  t'.  Athawes,  3 
Burr."  1592. 

(h)    Blanche     v.    Colburn,     8 


Bing.  14. 

(/)  Ellis  v.  Hamlen,  3  Taunt. 
52:  Burn  v.  Miller,  4  Taunt.  7  15; 
and  Munro  v.  Butt,  8  E.  &  B. 
738. 


ASSIGNMENT    OF    CHOSES    IN    ACTION.  225 

to  be  followed  so  far  as  it  can  be.  traced ;  but  if  it  has  been  totally 
abandoned,  then  the  workman  may  charge  for  his  work  according 
to  its  value,  as  if  the  original  contract  had  never  been  made  (k). 
If.  however,  the  extras  have  been  done  by  the  plaintiff  without  any 
authority  from  the  defendant,  the  latter  is  not  bound  to  pay  for 
them  [I);  and  where  by  the  terms  of  the  contract  extras  are  to  be 
ordered  in  writing,  the  defendant  is  liable  only  for  such  as  are  so 
ordered  (m).  Even  where  the  employer  has  assented  to  the  de- 
viation, he  will  not  be  liable  for  extras  unless  he  must  necessa- 
rily have  known  that  the  effect  would  be  to  increase  the  ex- 
pense [n). 

In  Richards  v.  May  (o),  where  a  contract  for  the  erection  of 
certain  works  provided  that  all  extras  or  additions,  payment  for 
which  the  contractor  should  become  entitled  to  under  the  con- 
tract, should  be  paid  for  at  the  price  fixed  by  the  surveyor  ap- 
pointed by  the  contractor's  employer,  it  was  held  that  this  provi- 
sion impliedly  gave  power  to  the  surveyor  to  determine  what 
were  extras  under  the  contraet,  and  consequently  that  his  certifi- 
cate awarding  a  certain  amount  to  be  due  for  extras  was  conclu- 
sive. See  also  Lapthorne  v.  St.  Aubyn,  1  C.  &  E.  486,  where  the 
architect's  certificate  was  held  so  conclusive  that  it  could  not  be 
shown  that  he  had  by  mistake  certified  for  work  not  done  at  all. 


Assignment  of  CJioses  in  Action. 

BRIOE  v.  BANNISTER.  [93.] 

[3  Q.  B.  D.  569  (1878).] 

Mr.  Gough,  ship -builder,  agreed  to  build  a  ship  for 
Mr.  Bannister,  ship  owner  for  £1375.  After  this  agree- 
ment had  been  entered  into,  Mr.  Gough  gave  one  of  his 
creditors,  Mr.  Brice,  solicitor,  of  Bridgwater,  the  fol- 
lowing order,  addressed  to  Mr.  Bannister: — 

"I  do  hereby  order,  authorise,  and  request  you  to  pay 
to  Mr.  William  Brice,  solicitor,  Bridgivater,  the  sum  of 
£100  out  of  money  due  or  to  become  due  from  you  to 
me,  and  his  receipt  for  same  shall  be  a  good  dis- 
charge " 

/,)  Pepper  r.  Burland,Peake,  13  C.    B.,    N.    S.  149;  and   see. 

139,    and     Robson    v.  Godfrey,  Tharsis  Sulphur   Co.   ».  McEl- 

Holt.  N.  P.  C.  236.  roy,  3  App.  Ca.  1040. 

(/)  Dobson  v.  Hudson.  1  C.  B.         (h)  Lovelock  v.  King,  1  Moo. 

N.  S.  659.  &  Rob.  60. 

(mi)  Russell    v.  Da  Bandeira,  (o)  10  Q.  B.  L>.  400. 


226  ASSIGNMENT   OF   (MIOSES    IN    ACTION. 

Directly  Brice  received  this  order,  lie  gave  notice  of 
it  to  Bannister  in  the  following  terms  :-*- 

"  I  hereby  gire  you  notice  that  by  a  memorandum  in 
writirig  dated  the  27th  of  October,  1876,  John  Gough,  of 
this  place,  authorised  and  requested  you  to  pay  me  the 
sum  of  £100  oxd  of  money  due  or  to  become  due  from 
you  to  him,  and  my  receipt  for  the  same  shall  be  a  good 
discharge." 

Bannister  seems  to  have  thought  that,  as  he  had  had 
nothing  to  do  with  this  arrangement  between  Gough 
and  Brice,  it  did  not  in  any  way  concern  him,  and  in 
spite  of  the  notice,  paid  the  whole  of  the  money  for  the 
ship  to  Gough. 

This  was  an  action  by  Brice,  and  it  was  held  that  the 
instrument  in  writing  constituted  a  valid  assignment  of 
the  £100.  "It  does  seem  to  me,"  said  Bramwell,  L.J., 
"a  straQge  thing,  and  hard  on  a  man,  that  he  should 
enter  into  a  contract  with  another  and  then  hnd  that, 
because  that  other  has  entered  into  a  contract  with  a 
third,  he,  the  first  man,  is  unable  to  do  that  which  it  is 
reasonable  and  just  he  should  do  for  his  own  good. 
Btit  the  law  seems  to  be  so  :  and  any  one  who  enters 
into  a  contract  with  A.  must  do  so  with  the  understand- 
ing that  B.  may  be  the  person  with  whom,  he  will  have 
to  reckon.'''1 

Chose  in  Previously  to  1873 — with   exceptions,   however,   in   favour  of 

action  not  as-  bills  of  exchange,  and  life  or  marine  policies  (p), — a  chose  in  ac- 
signable  at  tion  could  not  be  effectively  assigned  at  law,  though  it  could  in 
common  law.  equity_     j>ut  the  Judicature  Act,  1873,  provides  [q)  that— 

Judicature  "Any  absolute  ASSIGNMENT,  by  writing  under  the  hand  of  the 

Act  1873.  assignor  {not  purporting  to  be  by  way  of  charge  only),  of  any  debt  or 
other  legal  chose  in  action,  of  which  express  notice  in  writing  shall 
hare  been  given  to  the  debtor,  1  rustic,  or  other  person  from  whom  the 
assignor  would  ha  re  been  entitled  to  receive  or  claim  such  debtor  chose 
in  action,  shall  be,  and  be  deemed  to  have  been  effectual  in  law 
(subject   to    all  equities  which   would  hare   been    entitled  to   priority 


(p)  See  30  &  31  Vict.  c.  144,         (q)  Sect.  25,  sub-s.  6. 
and  31  &  32  Vict.  c.86. 


ASSIGNMENT    OF    CHOSES    IN    ACTION.  227 

over  the  right  of  the  assignee  if  this  Act  Had  not  passed  to  pass  and 
transfer  the  lego)  right  to  such  debt  or  chose  in  actinn  from  the  date  of 
such  notice,  and  (dl  legal  and  other  remedies  for  the  same,  and  the 
power  to  give  a  good  discharge  for  the  same,  without  the  concurrence 
of  the  assignor:  Provided  always,  that  if  (he  debtor,  trustee,  or  other 
person  liable  in  respect  of  such  debt  or  chose  in  action  shall  hair  had 
notice  that  such  assignment  is  disputed  by  the  assignor  or  any  one 
claiming  under  him,  or  of  any  other  opposing  or  conflicting  claims  to 
such  debt  or  chose  in  action,  he  shall  be  entitled,  if  he  think  Jit,  to  call 
upon  the  several  persons  making  claim  (hereto  to  interplead  concerning 
the  same,  or  he  may,  if  he  think  Jit,  pay  (he  same  into  the  High  Court 
of  Justice  under  and  in  conformity  with  the  provisions  of  the  Acts  for 
the  relief  of  trustees. ' ' 

In  the  recent  ease  of  National  Provincial  Bank   v.  Harle  (r),  Assignor  re- 
where  the  mortgagee  of  some  premises  had  assigned  to  his  bank-  serving 
ers,  as  security  for  the  balance  of  his  banking  account,  the  sum  n^ 
due  on  the  mortgage  deed,  subject  to  his  right  to  have  an  account 
and  for  the  reconveyance  of  the  premises  on  certain  conditions,  it  was 
held  that  the  assignment  was  not  absolute  but  only  "  by  way  of 
charge. ' ' 

In  another  case  (s)  the  plaintiffs  had  sub-let  a  portion  of  prern-  Assignment 
ises  in  Baker  Street,  of  which  they  had  a  lease,  to  the  defendant,  of  rent  not 
They  afterwards  assigned  their  interest  in  the  premises  to  a  per-  yet  due. 
son  named  Burrows,  agreeing  with  him  in  writing  that,  notwith- 
standing the  assignment,  they  should  receive  the  rent  due  irom 
the  defendant  for  the  remainder  of  her  lease  ;  and  notice  of  this 
agreement  was  given  to  the  defendant.  The  defendant  after- 
wards surrendered  her  lease  to  Burrows,  and  in  an  action  for 
rent  claimed  as  accruing  after  the  surrender  it  was  held  that, 
even  if  there  was  a  valid  assignment  of  a  chose  in  action,  still 
that  the  plaintiffs  could  not  recover,  for  that  the  assignment  icasof 
rent  to  become  due,  ivhcreas  no  rent  had  accrued  due  after  the  sur- 
render, and  the  defendant  could  not  be  prevented  by  the  agree- 
ment between  the  plaintiffs  and  Burrows  from  surrendering  her 
lease  to  Burrows.  It  seems  to  be  doubtful,  however,  whether 
there  was  in  this  case  any  valid  assignment  within  the  sub-sec- 
tion. 

In  Burlinson  v.  Hall  (t)  debts  had  been  assigned  by  deed  to 
the  plaintiff  upon  trust  that  he  should  receive  them,  and  out  of 
them  pay  himself  a  sum  due  to  him  from  the  assignor,  and  pay 
the  surplus  to  the  assignor.  It  was  held  that  this  was  an  "abso- 
lute assignment  (not  purporting  to  be  by  way  of  charge  only)," 
and  that  the  plaintiff  might  sue  in  his  own  name  for  the  debts. 

Other  eases  on  the  subject  that  may  useful]  v  he  referred  to  are  Other  cases 
Buck  r.  Robson,  3  Q.  B."  D.  68G  :  Young  v.   Kitchen,   3  Ex.  D. 
127;  Re  .Sutton's  Trusts.  12  Ch.  D.  175;  Schroeder  v.  Cent.  B;mk 
of  London,  34  L.  T.  735;  British  Waggon  Co.  v.  Lea.  Q.  B.  D.  149; 

(r)6Q.  B.  D.  626.~~  L.  J.,  R.  Q.  B.  D.  357. 

(a)  Southwell   v.   Scotter,    49 


228 


ASSIGNMENT    OF    CHOSES    IN    ACTION. 


and  Wakefield  and  Barnsley  Banking  Co.  v.  Normanton  Local 
Board,  44  L.  T.  697. 

Mortgages.  ^  seems  tnat  under  the  Conveyancing  Act  of  1881  the  trans- 

feree of  a  statutory  mortgage  may  sue  on  it  in  his  own  name  (?<). 

TJovation.  Novation  may  be  just  mentioned  here.     It  occurs  where  a  third 

party  undertakes  the  liability  of  the  contract  and  is  accepted  by 
the  creditor  in  substitution  for  the  original  contractor  (x).  This 
mode  of  discharge  receives  its  commonest  illustration  in  the 
acceptance  by  policy  holders  of  the  transfer  of  their  policies,  and  in 
changes  in  firms  of  partners. 

As  to  garnishees  and  the  attachment  of  debts  see  order  xlv.  of 
the  Judicature  Acts. 


Acknowledgments   Saving  the  Statute  of 
Limitations. 


[94.] 


TANNER  v.  SMART. 

[6  B.  &  C.  603  (1827).] 

In  1816  Smart  gave  Tanner  his  promissory  note  for 
£160.  In  1819  Tanner  showed  it  him,  and  delicately- 
suggested  a  settlement.  Smart  said  frankly,  "I  can't 
pay  the  debt  at  present,  but  I  will  pay  it  as  soon  as  I 
can."  Five  years  slipped  by,  and  Tanner  brought  an 
action  on  the  note,  to  which  Smart  pleaded  actio  non 
accrevit  infra  sex  annos, — in  other  words,  pleaded  the 
Statute  of  Limitations.  In  reply  to  that  defence,  Tan- 
ner proved  that  only  five  years  had  elapsed  since  Smart 
had  spoken  the  aforesaid  words.  This,  however,  was 
considered  to  be  insufficient,  in  the  absence  of  proof  of 
the  defendant's  ability  to  pay. 


„  ~    ,     c  If  I  allow  six  vears  to  slide  by  without  making  mv  simple  con- 

Effect  of  part  J  ,  ,".,.. 

payment  or     tract  debtor  pay  me  what  he  owes,  my  remedy  against  him  is 

acknowledg-   barred  by   the   Statute   of  Limitations.     But   let   me   consider 

ment.  whether  he  has  not  perchance  done  something  in  his  guilelessness 


21  Jac.  I. 
16. 


(u)  44  &  45  Vict.  c.  41,  s.  27. 

[a  "Praeterea  novatione  tol- 
litur  obligatio.  Veluti  si  id 
quod  tu  Seio  debeas,  a  Titio 
dari  stipulatus  sit.     Nam  inter- 


ventu  novre  persona;  nova  nas- 
citur obligatio,  et  prima  tollitur 
translata  in  posteriorem."  Just. 
Inst..  3,  29,  3. 


SAVING    STATUTE    OF    LIMITATIONS.  229 

to  interrupt  the  operation  of  that  excellent  statute.     There  are 
two  ways  in  which  the  debt  may  have  been  revived. 

(1.)  By  part  payment,  or  payment  of  interest  (y)  ;  and 

(2.)  By  acknowledgment  written  and  signed  (z). 

J  at  the  part  payment  or  acknowledgment  must  be  of  such  a  Promise  to 

nature  a.s  not  to  be  inconsistent  with  an  implied  promise  to  pay  the  l)a.v   must  be 

whole  debt  claimed  (//)•     A  refusal  to  pan  (for  instance,  where  the  ?a?a  J  ?  ° 
J  J  '  being  lin- 

debt   r  said,  "  1  know  that  I  owe  the  money  ;  but  the  bill  I  gave  is  on  ,,ijeti 

a  threepenny  reeeipt  stamp,  and  J  will  never  pay  it,,y)  is  not  good 

enough  (b)  ;  and  when  there  is  a  conditional  promise,  the  creditor 

must  prove  the  performance  of  the  condition  (c). 

In  Green  v.  Humphreys  (d)  the  letter  relied  on  as  taking  the 
debt  out  of  the  statute  containing  the  following  passage  : — 

"  I  thank  you  for  your  very  kind  intention  to  give  up  the  rent 
of  Tyn-y-Burwydd  next  Christmas,  but  1  am  happy  to  say  at  that 
time  both  principal  and  interest  will  have  been  paid  in  full."  It 
was  held  that  this  would  not  do  for  purpose.  ''  It  seems  to  me," 
said  Bowen,  L.  J.,  "that,  although  there  is  here  an  acknowledge 
ment  of  a  debt  in  a  sense,  there  is  not  a  clear  acknowledgment  of 
a  debt  in  such  a  way  as  to  raise  the  implication  of  a  promise  to 
pay,  but,  on  the  contrary,  only  in  such  a  way  as  to  exclude  the 
idea  of  a  promise  to  pay,  and  to  imply  that  the  writer  did  not 
undertake  to  pay."  "  I  think,"  said  Fry,  L.J.,  "  that  the  words 
of  the  letter  which  have  been  referred  to  may  be  fairly  para- 
phrased in  this  way,  '  I  thank  you  for  your  very  kind  intention 
to  let  my  wife  receive  the  rents  of  her  estate  after  next  Christ- 
mas, but  your  kindness  is  apparent  and  not  real,  for  by  next 
Christmas  the  debt  to  satisfy  which  you  have  been  stopping  her 
rents  will  have  been  fully  satisfied  in  some  manner  or  another." 
That  appears  to  me  to  be  the  best  paraphrase  which  I  can  give 
to  the  sentence  in  question  when  I  regard  the  surrounding  cir- 
cumstances of  the  case,  and  in  that  I  find  no  acknowledgment 
that  a  debt  is  due' from  the  writer." 

An  acknowledgment  since  action  brought  is  not  sufficient  (e), 
and  it  has  been  doubted  whether  an  acknowledgment  to  a  third 
party  would  be  (/"). 

(y)  See  Morgan  r.   Rowlands,         (c)  Meyerhoff  ?>.  Froehlich,  4 

L.    R.   7  Q.    B.    493  ;  Bum    v.  C.  P.  D.  63. 
Boulton,  2  C.  B.  47G  ;  and  Ma-         (d)  26  Ch.  D.  474. 
ber  /-.  Maber,  L.  R.  2  Ex.  153.  (e)  Bateman  v.  Piuder,  3  Q. 

(z)  9  Ge  >.  IV.  c.  14,  s.  1,  and  B.  574,  overruling  Yea  v.  Four- 

19  &  20  Vict.  c.  97,  s.  13.  aker,  2  Bun.  1099. 

(a)  Smith   r.   Thorne,   18  Q.         (/)  See   Grenfell   v.    Girdle- 

B.  lot  ;  Skeet  v.  Lindsay.  2  Ex.  stone,  2  G.  &  C.  (io'2  ;  Howcutt 

D.  314  ;  and  Quincey  v.  Sharp,  v.  Bonser,  3  Ex.   491  ;  Haydon 

1  Ex.  D.  72.  v.  Williams,  7  Bing.   163  ;  and 

{!>)  A 'Court  r.  Cross,  3  Bing.  Godwin  v.   Culley,  4  H.  &  N. 

328 ;   and   see    Humphreys    v.  373. 
Jones,  14  M.  &  W.  1. 


230 


SAVING    STATUTE    OF    LIMITATIONS. 


When  statute 
begins  to  run. 

Sale  On 

credit. 

Promissory 
note  payable 
on  demand. 


Principal 
surety,  and 

co-sureties. 


Indemnity. 


Work  done. 


Disabilities. 


Deeds. 


The  statute  commences  to  run  from  the  time  when  the  cause  of 
action  first  accrues  (;/).  Thus,  when  goods  are  sold  on  credit,  the 
six  years  are  counted,  not  from  the  date  of  the  sale,  but  from  the 
time  when  the  credit  expires  (/<).  In  the  case,  however,  of  a 
promissory  note  payable  on  demand,  the  statute  begins  to  run  at 
once  '  i  |.  Where  a  sum  of  money  is  payable  by  instalments,  and 
there  is  an  agreement  between  the  debtor  and  the  creditor  that, 
on  non-payment  of  any  one  of  such  instalments,  the  whole  shall 
become  due,  the  statute  begins  to  run  from  the  first  default  (k). 

In  eases  between  principal  and  surety,  the  statute  begins  to 
run  against  the  latter  from  the  time  of  his  first  payment  in  ease 
of  the  principal.  But,  as  between  one  co-surety  and  another,  the 
statute  does  not  begin  to  run  against  the  surety  until  he  has  paid 
more  than  his  proportion  of  the  debt  for  which  he  and  his  co- 
surety are  jointly  liable  (/)• 

In  the  case  of  a  contract  of  indemnity,  the  statute  does  not  be- 
gin to  run  until  the  lapse  of  six  years  from  the  actual  damnifica- 
*tion  (m).  And,  accordingly,  where  the  defendant  had  obtained 
from  the  plaintiff  the  loan  of  his  acceptance  for  £40  payable  forty 
days  after  date,  it  was  held  that  the  statute  began  to  run  from 
the  time  the  bill  was  paid  by  the  plaintiff,  and  not  from  the  time 
it  became  due  (»). 

Where  work  is  done  under  a  general  contract,  the  cause  of 
action  accrues,  and  the  statute  begins  to  run  so  soon  as  the  work 
is  done  (o).  But  where  work  is  done  on  the  terms  that  it  is  to 
be  paid  for  out  of  a  particular  fund,  the  statute  does  not  begin  to 
run  until  the  fund  in  question  has  come  to  the  hands  of  the  de- 
fendant (p). 

Persons  under  the  disability  of  infancy,  coverture  (q)  ,or  insanity, 
have  six  years7  grace  in  which  to  bring  their  action  after  the  disa- 
bility has  ceased  (r)  ;  but,  if  the  statute  has  once  begun  to  run, 
no  subsequent  disability  will  suspend  its  operation  (s). 

When  the  contract  is  under  seat,  the  time  within  which  the  action 
must  be  brought  is  not  six  but  twenty  years  {t)   Specialty  debts  in 


(g)  Hemp  v.  Garland,  4  Q.  B. 
519,  and  Wilkinson  v.  Verity, 
L.  R.  6  C.  P.  206. 

(h)  Helps  v.  Winterbottom,  2 
B.  A:  Ad.  431. 

(/)  Norton  v.  Ellam.  2  M 
W.  461. 

(/>)  Hemp  r.  Garland,  sup. 

(I)  Davies  v.  Humphreys,  ( 
M.  A:  W.  153. 

(m)  Collinge  v.  Hevwood.  i 
A.  A  E.  633,  and  Huntley  v 
Sanderson.  1  C.  &  M.  4<i7. 

O)  Reynolds  v.  Doyle,  1  M 
&  G.  753. 


& 


(o)  Emery  r.  Day,  1  C.  M.  & 
P.  245. 

[p)  Re  Kensington  Station 
Act,  L.  R.  20  Eq.  197;  Cliitty 
on  Contracts,  (11th  ed.)  p.  750. 

{q)  See.  however,  the  new  Act 
(45  &  46  Vict.  c.  75)  as  to  this 
disability. 

(r)  21  Jac.  I.  c.  16,  s.  7.  and 
see  1!)  £  2d  Vict.  c.  97,  s.  10.     . 

(.<*)  Homfrav  r.  Scroope,  13Q. 
B.  509,  and  Rhodes  v.  Smeth- 
urst,  6  M.  &  W.   351. 

(0  3  &  4  Will.  IV.  c.  42,  s.  3. 


ACKNOWLEDGMENT    BY    JOINT    CONTRACTOR.  231 

India  have  no  higher  legal  value  than  simple  contract  debts,  the 

same  period  of  limitation,  viz.,  three  years,  barring  the  remedy 

for  both.     But  it  has  been  held  that,  if  an  action  is  brought  in 

England  on  a  bond  executed    in  India,  the  English  Statutes  of  Indian  bond 

Limitation  apply,   and  the  remedy  is  not  barred  till  alter  the  sued  on  in 

lapse  of  the  twenty  years  («).  England. 

A  recent  statute  provides  that  "  no  person  shall  make  an  entry  Recovery  of 
or  distress,  or  bring  an  action  or  suit,  to  recover  any  land  or  rent  land, 
but  within  twelve  years  next  after  the  time  at  which  the  right  to 
make  such  entry  or  distress,  or  to  bring  such  action  or  suit,  shall 
have  first  accrued  to  some  person  through  whom  he  claims;  or  if 
such  right  shall  not  have  accrued  to  any  person  through  whom 
he  claims,  then  within  twelve  years  next  alter  the  time  at  which 
the  right  to  make  such  eutry  or  distress,  or  to  bring  such  action 
or  suit,  shall  have  first  accrued  to  the  person  making  or  bringing 
the  same  "  (a;).  The  usual  disabilities  are  privileged,  but  thirty 
years  is  the  utmost  limit  allowed,  notwithstanding  the  existence 
of  one  of  them  during  the  whole  period.  By  sec.  7  of  the  same 
Act  a  mortgagor  is  barred  at  the  end  of  twelve  years  from  the 
time  when  the  mortgagee  took  possession,  or  from  the  last  writ- 
ten acknowledgment. 


Acknowledgment  by  Joint  Contractor,  &c. 

WHITCOMB  v.  "WHITING. 
[2  DOUGL.  652  (1781).] 

Whiting  and  Jones  made  a  joint  and  several  promis- 
sory note,  which  in  the  course  of  time  came  into  the 
hands  of  the  plaintiff.  Eight  or  ten  years  after  the 
day  on  which  it  was  made,  the  plaintiff  sued  Whiting, 
who  had  long  ago  forgotten  his  little  undertaking. 
"Yes,"  said  Whiting,  "that  certainly  must  be  my  sig- 
nature, and,  now  you  come  to  mention  it,  I  do  remem- 
ber something  about  a  promissory  note.  But  you  see, 
the  date  of  that  note  is  more  than  six  years  ago;  so  I 

(m)  Alliance  Bank  of  Simla         (x)  37  &  38  Vict.  c.  57,  s.  1. 
v.  Carey,  5  C.  P.  D.  429. 


[95.] 


232  ACKNOWLEDGMENT   BY    JOINT    CONTRACTOR. 

have  the  law  of  you."  "  That's  all  very  fine,  Mr.  Whit- 
ing," replied  the  holder  with  a  chuckle,  "but  Mr. 
Jones,  the  gentleman  whose  name  is  with  yours  on 
this  bit  of  paper,  has  paid  interest  on  it  within  the 
last  six  years;  and  that  takes  it  out  of  the  statute  as 
against  you  as  ivell  as  against  him." 

And  so  it  proved.  "  Payment  by  one,"  said  my  Lord 
Mansfield,  "is  payment  for  all,  the  one  acting  virtually 
as  agent  for  the  rest."  "The  defendant,"  said  YVilles,. 
J.,  "has  had  the  advantage  of  the  partial  payment, 
and  therefore  must  be  bound  by  it." 

By  9  Geo.  IV.  c.  14,  partly,  and  by  19  &  20  Vict.  c.  97,  s.  14, 
completely,  the  doctrine  of  this  case  was  altered;  and  a  Mr. 
"Whiting  of  1883  would  not  be  prejudiced  by  the  payment  or 
other  acknowledgment  of  a  joint  contractor.  He  would  be  able 
to  shelter  himself  behind  the  Statute  of  Limitations  and  snap 
his  fingers  at  his  creditor. 
Godwin  v.  ^n  a  recent  case  (y)  in  which  the  question  was  whether  one  of 

Parton.  two  partners  must  be  presumed,  in  the  absence  of  proof  to  the 

contrary,  to  have  authority  to  make  a  payment  on  account  of  a 
debt  due  by  the  firm,  so  as  to  take  the  debt  out  of  the  Statute  of 
Limitations  as  against  the  other, — held,  that  he  must — Lush,  J., 
said:  "The  cases  on  the  subject,  which,  of  course,  vary  in  their 
circumstances,  are  no  guide  to  the  decision  of  this  or  of  any  other 
case,  except  so  far  as  they  develop  the  principle  which  ought  to 
be  applied.  They  lay  down  the  following  conditions  as  neces- 
sary to  constitute  a  part  payment  so  as  to  prevent  the  operation 
of  the  statute. 

"First,  the  payment  must  be  shown  to  have  been  a  payment 
of  part,  as  part,  of  a  larger  sum — a  payment  which,  though  not 
in  fact  sufficient  to  cover  the  demand,  was  made  on  the  supposi- 
tion that  it  was  sufficient,  or  which  was  accompanied  with  ex- 
pressions or  circumstances  showing  that  the  debtor  did  not  in- 
tend even  to  pay  more,  will  not  suffice. 

"  Secondly,  the  payment  must  have  been  made  on  account  of, 
or  must  with  the  assent  of  the  debtor  have  been  appropriated  to 
the  debt  sought  to  be  recovered. 

"  Thirdly,  since  the  Mercantile  Amendment  Act  (19  &  20  Vict. 
c.  97)  payment  by  one  of  two  joint  debtors,  though  professedly 
made  on  behalf  of  both,  will  not  prevent  the  statute  running  in 
favour  of  the  ether,  unless  it  appears  that  he  either  authorised  or 
adopted  it  as  a  payment  by  him  as  well  as  by  his  co-debtor." 

(y)  Godwin  v.  Parton,  41  L.  T.,  N.  S.,  91. 


ACCORD    AND    SATISFACTION.  V33 

In  Watson  v.  Woodman  (z)  it  was  held  that  a  payment  hy  one 
of  a  firm  of  partners  will  renew  the  liability  of  all  the  others,  by 
reason  of  the  agency  of  a  partner  to  act  for  the  firm  ;  but  that  a 
dissolution  revokes  the  agency,  and  a  subsequent  payment  is 
inoperative  to  charge  a  former  partner. 


Accord  and  Satisfaction. 


CUMBER  v.  WANE.  [96.] 

[1  Strange  426  (1719).] 

Wane  owed  Cumber  £15,  and  wondered  how  he 
should  pay  it.  In  a  genial  moment  Cumber  rejoiced  his 
debtor's  heart  by  telling  him  that  if  he  paid  £5,  it 
would  do.  Wane  thanked  him,  sat  down  quickly,  and 
wrote  out  his  promissory  note  for  that  amount.  But 
after  a  while  it  repented  Cumber  of  his  generosity,  and 
he  went  to  law  for  the  whole  £15,  Wane  pleaded  that 
the  plaintiff  had  agreed  to  accept  £5  in  full  satisfaction 
for  the  debt  of  £15,  and  that  he  had  paid  the  £5. 
Though  perfectly  true,  this  was  not  considered  a  satis- 
factory plea,  and  the  unfortunate  Wane  was  compelled 
to  pay  the  remaining  £10. 

The  principle  on  which  Cumber  v.   Wane  proceeds  is  that  there  prjn(.jpie  0f 
is  no  consideration  lor  the  relinquishment  of  the  residue  ;  so  that  leading  case, 
whenever  there  is  a  benefit,  or  legal  possibility  of  a  benefit,  to 
the  creditor,  the  doctrine  that  the  payment  of  a  smaller  sum  is 
no  satisfaction  of  a  larger  one  does  not  apply.     Therefore — 

(1.)  The  payment  of  something  of  a  different  nature,  though  njfferent 
of  less  value,  e.g  ,  an  old  arm-chair   (which   may  have  a  fancy  kinds, 
value  quite  apart  from  its  intrinsic  usefulness),  may  be  pleaded 
in  satisfaction  of  a  debt  of  £10,000.     So  a  negotiable  instrument — 
hy  the  way,  it  must  be  taken  that  in   Cumber  v.    Wane  the  note 
was  not  negotiable — for  £5  might  very  successfully  be  pleaded  in 

(z)  L.  R.  20  Eq.  721. 


234 


ACCORD    AND    SATISFACTION. 


Payment 
earlier  or  at 
different 
place. 
Dispute. 
Unliqui- 
dated 
damages 


Composition 
with  cred- 
itors. 


Receipt  nu- 
der  seal. 


Beer  v. 
Foakes. 


satisfaction  of  a  debt  of  £15  (a).  In  the  recent  case  of  Goddard 
v.  O'Brien  (b)  this  point,  which  had  formerly  been  regarded  as 
doubtful,  was  established  beyond  question. 

(2.)  So  may  a  payment,  smaller  indeed,  but  earlier  than  origi- 
nally stipulated  for,  or  made  at  a  different  place.  Bis  dat  qui  cito 
dat  (c). 

(3.)  So  when  there  is  a  dispute  as  to  the  exact  sum  due  (d). 

(4.)  The  doctrine  does  not  apply  to  unliquidated  damages,  for  it 
is  not  known  what  is  really  due  to  the  plaintiff.  Railway  com- 
panies occasionally  succeed  in  entrapping  their  victims  into  agree- 
ments of  this  kind.  In  such  a  case  the  question  for  the  jury  is 
whether  the  plaintiff's  mind  went  with  the  terms  of  the  paper 
he  signed  (e). 

(5.)  Under  the  Bankruptcy  Act,  1869,  a  debtor  may  be  dis- 
charged from  obligations  by'  his  creditors  accepting  a  composi- 
tion (/). 

It  is  to  be  observed  that  a  smaller  sum  may  be  pleaded  in  sat- 
isfaction of  a  greater  if  there  is  a  receipt  under  seal  (g).  More- 
over, payment  of  part  may  sometimes  be  evidence  of  a  gift  of  the 
remainder;  or,  again,  there  may  be  a  remedy  by  way  of  counter- 
claim. 

To  be  a  good  discharge,  an  accord  must  be  executed  (h),  unless, 
indeed,  the  jury  find  that  what  the  plaintiff  accepted  in  satisfac- 
tion was  not  the  performance  but  the  promise  (i). 

Accord  and  satisfaction  made  by  a  stranger  on  behalf  of  the  de- 
fendant, and  adopted  by  the  plaintiff,  is  a  good  defence  (k). 

To  an  action  by  several  joint  creditors  accord  and  satisfaction 
with  any  one  of  them,  without  the  necessity  of  showing  that  he 
had  authority  from  the  rest  to  settle,  is  an  answer  (/).  And  so 
accord  and  satisfaction  made  by  one  of  several  parties  jointly  lia- 
ble discharges  all  (m). 

In  Beer  v.  Foakes  (n),  the  principle  of  Cumber  v.  Wane  was 
discussed.  Judgment  for  a  specific  sum  having  been  obtained 
by  the  plaintiff  in  an  action,  an  agreement  in  writing  was  made 
between  the  plaintiff  and  the  defendant  whereby,  in  considera- 
tion that  the  defendant  would  pay  part  of  the  sum  on  the  signing 
of  the  agreement  and  the  remainder  to  the  plaintiff  or  her  nomi- 
nee by  equal  half  yearly  instalments,   the  plaintiff  undertook 

(a)  Sibree  v.  Tripp,  15  M.  &  230. 

W.  34.  (h) 

{b)  9  Q.  B.  D.  37.  &  W. 

(c)  Pinnell's  case.  5  Co.  117.  (■/) 

(d)  Cooper  v.  Parker,  15  C.  1039, 
B.  822.  601. 

(e)  Rideal  v.  G.  W.  Ry.  Co.,  (A-) 
1  F.  &  F.  706 ;  and  see  Lee  v.  B.  17 
Lane.  &  Yorks.  Ry.  Co.,  L.  R.  12  C. 
6  Ch.  527.  (I) 

(/ )  32  &  33  Vict.  c.  71  s.  125;  &  W. 

but  see  Bovd  v.  Hind,  1   H.    &  (m 

N.  938,   and  Edwards  v.   Han-  &  E. 

cher,  1  C.  P.  D.  111.  (h) 

(g)  Fitch  v.   Sutton,   5  East, 


Edwards  v.  Chapman  1  M. 

231. 

Hall  v.  Flockton,  16  Q.  B. 

and  Evans  v.  Powis,  1  Ex. 

Jones  r.  Broadburst.  9  C. 
3,  and  Randall  v.   Moon, 

B.  261. 

Wallace  v.  Kelsall,   7   M. 

264. 

Nicholson  v.  Revill,  4  A. 
675.       ■ 

9  A  pp.  Ca.,  605. 


TENDER.  235 

not  to  take  proceedings  on  the  judraent.  The  defendant  duly 
performed  all  the  terms  of  the  agreement  on  his  part,  but  it  was 
held  that  the  agreement  was  not  binding  on  the  plaintiff,  there 
being  no  consideration  for  it,  and  that  therefore  the  plaintiff  was 
entitled  to  issue  execution  for  interest  on  the  judgment  debt. 

A  point  of  practice  decided  in  the  leading  case  was  that  if  one  Second  point 
parly  die  during  a  curia  advisari  vult,  judgment  may  be  entered  nunc  °*  leading 
pro  tunc.     This  is  on  the  principle,  Actus  curise  nemini  facit  in-  case* 
juriam  (o).     See  also  Ackroyd  v.  Smithies,  54  L.  T.,  N.  S.  130. 


Tender. 

FINCH  v.  BROOK.  [97.] 

[1  Bitfo.  N.  C.  253  (1834).] 

Money  disputes  having  arisen  between  Mr.  Finch 
and  Mi*.  Brook,  and  litigation  being  imminent,  Mr. 
Brook  sent  his  attorney  to  Mr.  Finch  to  pay  what  he 
believed  to  be  the  amount  of  his  debt.  Accordingly, 
Brook's  attorney  called  on  the  creditor,  and  said,  "  I 
am  come,  Mr.  Finch,  to  pay  you  the  £1  12s.  bd.  which 
Mr.  Brook  owes  you,"  whereupon  he  put  his  hand  into 
his  pocket  to  come  at  the  coin.  Finch,  however,  testily 
replied,  "I  can't  take  it,  the  matter  is  now  in  the  hands 
of  my  attorney,"  and  so  the  lawyer  took  his  hand  out 
of  his  pocket  again  without  producing  the  money. 
The  question  was  whether  this  constituted  a  valid 
tender,  and  it  was  held  (hat  it  did  not,  for  there  was 
neither  production  of  the  money  nor  dispensation  with 
production  (p). 

The  reason  why  the  law  attaches  so  much  importance  to  the 
production  of  the  money  is  that  "the  sight  of  it  may  tempt  the 
creditor  to  yield."     A  tender,  however,  is  valid,  though  there  is  Production 
no  production,  if  the  creditor  dispenses  with  it;  as,  for  instance,  dispensed 
l  ■  ■    - 

(o)  See  Turner  v.  L.  &  S.  W.     if  the  jury  had   chosen  to  do 
Ky.  Co.,  L.  R.  17  Eq.  561.  so,  they  might   very  well  have 

( ]t)    The     court,       however,      inferred  dispensation, 
seems   to    have  thought    that, 


with. 


236 


TENDER. 


Uncondi- 
tional. 


To  or  by 

agent. 


Whole  debt. 


Current  coin, 


Debt  not  ex- 
tinguished. 


where  a  debtor  called  on  his  creditor  and  said  he  had  £8  18s.  6(7. 
in  his  pocket  to  pay  the  debt  with,  whereupon  the  creditor  ex- 
claimed, "  You  needn't  give  yourself  the  trouble  of  offering  it,  for 
J' in  not  going  to  take  it"  (q).  Hut  Lord  Tenterden,  C.J.,  thought 
there  was  not  a  sufficient  tender  where  the  production  of  the 
money  was  prevented  by  the  creditor  leaving  the  room  after  the 
debtor  had  offered  to  pay  it,  and  whilst  he  was  in  the  act  of  tak- 
ing it  from  his  pocket  (>-). 

A  valid  tender  must  be  unconditional.  "If  you  will  gire  me  a 
stamped  receipt,  I  will  pay  you  the  money,"  said  a  debtor  once,  and 
he  pulled  out  the  money  as  he  spoke.  But  the  tender  was  held 
bad  for  the  condition  (s).  A  tender  made  "under  protest"  is  not 
a  conditional  tender  (1). 

The  tender  need  not  be  made  to  the  creditor  himself.  It  may 
be  made  to  an  agent  authorised  to  receive  payment  of  the  debt  (u). 
Conversely,  the  tender  may  be  made  by  an  agent  of  the  debtor  (x). 
And  so  tender  to  one  of  several  joint  creditors,  or  by  one  of  several 
joint  debtors,  is  good. 

The  tender  must  be  of  the  whole  debt.  But  if  the  creditor's 
claim  consists  of  a  number  of  distinct  items,  the  debtor  may 
make  a  good  tender  of  payment  of  any  one  of  them,  provided 
that  he  carefully  specifies  the  particular  item  he  wishes  to  dispose 
of  («).  A  tender  may,  of  course,  be  made  of  a  larger  sum  of 
money  than  the  amount  of  the  debt  (z),  but  the  debtor  must  not 
demand  change  (a). 

The  tender  must  be  in  the  current  coin  of  the  realm.  Gold  is 
good  to  any  amount ;  but  silver  is  not  beyond  40s.,  nor  copper 
beyond  a  shilling  (b).  A  Bank  of  England  note  payable  to  bearer 
is  a  legal  tender  for  all  sums  above  £5  (c).  A  tender  in  country 
notes  or  by  cheque  is  good  if  the  only  reason  given  by  the  cred- 
itor at  the  time  for  not  accepting  it  is  that  the  amount  of  the 
debt  is  larger  (d). 

It  is  scarcely  necessary  to  say  that  the  effect  of  a  valid  tender 
is  not  to  extinguish  the  debt.  On  the  contrary,  it  is  an  admission 
of  the  contract.  But  what  it  does  is  to  put  the  plaintiff  in  the 
wrong  so  far  as  his  action  is  concerned.  He  is  exposed  as  the  liti- 
gious oppressor,  while  the  defendant  stands  lorth  as  the  virtuous 


(fj)  Douglas  v.  Patrick,  3  T. 
R.  638. 

(r)  Leatherdale  v.  Swepstone, 
3  C.  &  P.  342. 

(s)  Laing  v.  Meader,  1  C.  & 
P.  257.  See,  however,  Rich- 
ardson v.  Jackson,  8  M.  &  W. 
928. 

(0  Scott  v.  Uxbridge  and 
Riekmansworth  Ry.  Co.,  L.  R. 
I.  C.  P.  .",96. 

(«)  Moffatt  v.  Parsons,  5 
Taunt.  :!07:  and  see  Finch  v. 
Boning,  4  C.  P.  D. 


(x)  Read  v.  Goldring,  2  M.  & 
S.  86. 

(y)  Strong  r.  Harvey,  3  Bing. 
304,  and  Hardingham  v.  Allen, 
5C.  B.  793. 

(z)  Dean  v.  James,  4  B.  & 
Ad.  546. 

(a)  Betterbee  v.  Davis,  5 
Camp.  70. 

(b)  33  Vict.  c.  10,  s.  4. 

(c)  3  &  4  Will.  IV.  c.  98.  s.  6. 

(d)  Polglass  v.  Oliver,  2  C.  & 
J.  15. 


CONSTRUCTION  OF  CONTRACTS.  237 

citizen  who  has  all  along  been  ready  and  anxious  to  discharge 
his  liabilities  (c).  Accordingly,  a  valid  tender  stops  the  further 
accrual  of  interest  (/).  But  the  plea  of  tender  must  be  accom- 
panied by  payment  into  court  of  the  money  tendered. 


Construction  of  Contracts. 


ROE  v.  TRANMARR.  [98.] 

[Willes  632  (1758).] 

A  deed  bade  fair  to  become  void  altogether  as  pur- 
porting to  grant  a  freehold  in  futuro — a  thing  which 
the  law  cannot  stomach.  It  was  saved,  however,  from 
this  untimely  fate  by  the  merciful  construction  that, 
though  void  as  what  it  purported  to  be,  it  might  yet 
avail  as  a  covenant  to  stand  seised,  the  court  citing  the 
maxim,  benigne  faciendce  sunt  interpretationes  chart a- 
rum,  id  res  magis  valeat  quam  pereat;  and  it  is  in  con- 
nection somehow  with  this  decision  that  Mr.  Tranmarr 
has  succeeded  in  building  himself  an  everlasting  name. 

In  construing  a  written  contract  (which  construction -is  for  the  ,   ,      ,.        r 
°  .  .  ,     ,      '   ,         Intention  of 

court),  the  intention  of  the  contracting  parties  must  be  looked  to,  contraetin<* 

the  sense  in  which  the  promisor  believed  that  the  promisee  accepted  the  parties. 

promise  being  the  principal  test.     But,  on  the  other  hand,  it  is  of 

no  consequence  what  the  intention  of  the  contracting  parties  was 

if  their  written  agreement,  though  totally  inconsistent  with  such 

intention,  is  precise  and  clear. 

The  chief  rules  of  construction  are  the  following: — ■ 

(1.)  The  construction  must  be  reasonable 

y    -  Construction 

One  surgeon  sold  his  business  to  another  and  covenanted  not  to  must  \n. 

practise  within  a  certain  distance.     On  the  reasonable  construe-  reasonable. 

tion  of  this  covenant  it  was  held  not  to  have  been  broken  by  the 

retired  surgeon's  acting  in  an  emergency,  so  long  as  he  was  not 

(e)  Per  cur.  in  Dixon  v.  (/)  Dent  v.  Dunn,  3  Camp. 
Clark,  5  C.  B.  377.  296. 

17   COMMON   LAW. 


238 


CONSTRUCTION  OF  CONTRACTS. 


Liberal. 


Favourable. 


Ordinary 

sense  of 
words 


Context. 


Contra  pro- 
feren  fern. 


trying  to  gel  his  practice  back  (g).  So,  in  a  charter-party,  "the 
words  '  as  mar  thereto  as  she  can  safely  get '  must  receive  a  reason- 
able and  not  a  literal  application"  (/<).  So,  too,  where  a  young 
man  living  with  his  father  in  Lambeth  was  at  the  same  time  ap- 
prenticed to  some  mechanical  engineers  in  the  same  district,  a 
notice  to  remove  to  Derby  was  held  unreasonable  (<). 

(2.)  The  construction  must  be  liberal. 

For  example,  the  masculine  will  generally  include  both  genders. 

(3.)  The  construction  must  be  favourable. 

If  it  is  possible  to  put  two  constructions  on  an  agreement, — 
one  which  would  make  it  illegal  and  void,  and  the  other  which 
would  not,  the  latter  view  must  be  taken.     See  the* leading  case. 

(4)  Words  must  be  construed  in  their  ordinary  sense. 

An  annuity  was  to  become  void  if  a  woman  separated  from  her 
husband  "associated"  with  a  particular  person.  It  was  held 
that  to  receive  the  man's  visits  whenever  he  chose  to  call  was 
"associating"  with  him,  and  that,  in  fact,  all  intercourse,  how- 
ever innocent,  was  prohibited  (k). 

Usage,  however,  may  give  words  a  technical  meaning. 

(5.)  The  whole  context  must  be  considered. 

One  part  of  the  document  may  throw  important  light  on  an- 
other; ex  antecedentibus  et  consequent  ibus  fit  optima  inierprefafio. 
The  luminous  judgment  of  Lord  Chelmsford,  L.C.,  in  Money- 
penny  v.  Moneypenny  (/),  and  the  case  of  Piggott  v.  Strat- 
ton  (to),  may  be  referred  to  in  illustration  of  this  rule. 

(6.)  The  words  of  a  contract  must  be  construed  most  strongly 
against  the  contractor. 

Verba  chartarum  fortius  accipiuntur  contra  proferentum;  the  law 
shrewdly  suspecting  that  every  man  will  take  care  to  guard  his 
own  interests. 

This  rule,  however,  applicable  only  as  a  last  resource,  and  in 
the  case  of  a  grant  from  the  Crown  is  reversed  altogether  (n). 
Moreover  it  would  appear  that  the  rule  is  not  to  be  applied  when 
it  would  work  a  wrong  to  a  third  person;  constructio  legis  non 
fai-it  injuriam  (o).  See  also  the  recent  case  of  Stewart  v.  Mer- 
chants' Marine  Insurance  Co.,  16  Q.  B.  D.  619. 


(g)  Rawlinson  r.  Clarke,  14 
M-  &W.  187. 

(A)  Per  Lush,  J.,  in  Capper 
v.  Wallace,  5  Q.  B.  D.  166. 

(j)  Eaton  v.  Western,  9  Q.  B. 
D.  636,  overruling  Royce  v. 
Charlton,  SQ.  B.D.I. 

(k)  Dormer  v.  Knight,  1 
Taunt.  417;  and  see  Barton  v. 
Fitzgerald,    15  East,   530,   and 


Biddlecombe  r.  Bond,  4  Ad.  & 
E.  332. 

'(/)  9H.  L.  C.  114. 

(to)  29  L.  J.  Ch.  1. 

(«)  Eastern  Archipelago  Co., 
v.  Reg.,  2  E.  &  B.  906. 

(o)  Per  Sir  Joseph  Napier 
Rodger  v.  Comptoir  d'Escompte 
de  Paris,  L.  R.  2  P.  C.  406. 


MEASURE   OF   DAMAGES   IN   CONTRACT.  239 


Measure  of  Damages  in  Contract. 


HADLBY  v.  BAXENDALE. 
[9  Exch.  341  (1854).] 

Messrs.  Hadley  and  Co.  were  millers  at  Gloucester, 
and  worked  their  mills  by  a  steam-engine.  In  May, 
1853,  the  crank  shaft  of  the  engine  broke,  and  their 
mills  suddenly  came  to  a  standstill.  With  a  view  to 
remedying  the  disaster,  they  communicated  immediately 
with  Messrs.  Joyce  and  Co.,  engineers,  of  Greenwich, 
and  settled  to  send  them  the  broken  shaft  that  it  might 
form  the  pattern  for  a  new  one.  They  then  sent  a  ser- 
vant to  the  office  of  the  defendants,  the  well-known  linn 
of  carriers  trading  under  the  name  of  "  Pickford  and 
Co.,"  to  arrange  for  the  carriage  of  the  broken  shaft. 
The  servant  found  a  clerk  at  the  office,  and  that  gentle- 
man informed  him  that,  if  sent  any  day  before  12  o'clock, 
the  shaft  would  be  delivered  the  next  day  at  Greenwich. 
On  the  following  day,  accordingly,  before  noon,  the 
shaft  was  received  by  the  defendants  for  the  purpose  of 
being  conveyed  to  Greenwich,  and  £2  4s.  was  paid  for 
its  carriage  for  the  whole  distance.  It  happened,  how- 
ever, through  the  negligence  of  the  defendants,  that  the 
shaft  was  not  delivered  the  next  day  at  Greenwich;  and 
the  consequence  was  that  Hadley  and  Co.  did  not  get 
the  new  shaft  till  several  days  after  they  otherwise  would 
have  done,  the  mills  in  the  meantime  remaining  silent 
and  idle,  to  the  not  small  pecuniary  loss  of  their  pro- 
prietors. 

It  was  for  the  loss  of  those  profits  which  they  would 
have  made  if  the  new  shaft  had  come  to  them  when 
they  expected  it  that  this  action  was  brought;  and  the 
question  was  whether  the  damage  was  too  remote.     It 


[99.] 


240 


MEASURE    OF    DAMAGES    IN   CONTRACT. 


was  held  that  if  the  carriers  had  been  made  aware  that 
a  loss  of  profits  would  result  from  delay  on  their  part, 
they  would  have  been  answerable.  But  it  did  not  ap- 
pear that  they  knew  that  the  want  of  the  shaft  was  the 
only  thing  which  was  keeping  the  mill  idle.  Therefore 
tbev  were  not  liable. 


Damages 
arising 

naturally. 


Throe  great 
rules. 


The  damages  recoverable  for  breach  of  contract,  are  those  which 
arise  naturally  from  the  breach,  or,  as  has  been  said,  are  such 
as  may  be  reasonably  supposed  to  have  been  in  the  contemplation  of  the 
parties  at  the  time  the  contract  teas  made  as  the  probable  result  of  a 
breach  of  it.  Baron  Martin  (p),  however,  objected  to  the  latter 
test  of  damage,  on  the  ground  that  parties,  when  they  make  a 
contract,  contemplate  fulfilling  and  not  breaking  it. 

Three  rules  are  generally  considered  to  be  deducible  from  the 
leading  case  of  Hadley  v.  Baxendale. 

1.  Damage*  which  may  fairly  be  deemed  such  as  would  naturally  (q) 
arise  from  a  breach  of  the  contract,  in  the  usual  course  of  things,  are 
recoverable. 

Thus,  in  an  action  (r)  for  not  accepting  goods  sold,  or  for  not 
delivering  them,  the  measure  of  damages  is  the  difference  between 
tin  contract  price  and  the  market  price  of  similar  goods  at  the  time 
when  they  ought  to  have  been  accepted  or  delivered.  And  where  the 
contract  is  to  deliver  goods  in  specified  quantities  at  specified  pe- 
riods (s),  as  each  period  arrives,  if  no  delivery  or  only  a  partial 
delivery  takes  place,  the  damages  will  be  the  difference  between 
the  contract  price  and  the  market  price  on  that  day  of  the  quan- 
Diseased  cow  ^'^  wnicn  ought  to  have  been  then  supplied.  In  a  recent  case  (t) 
warranted  a  cow  was  sold  with  a  warranty  that  it  was  free  from  disease.  As 
a  matter  of  fact,  it  had  the  foot-and-mouth  disease,  and  infected 
a  number  of  other  cows  belonging  to  the  purchaser.  All  the  cows 
died,  and  the  vendor  was  held  responsible  for  the  entire  loss,  on 
the  ground  that  he  could  never  have  supposed  that  the  cow  he 
sold  was  intended  for  a  life  of  solitary  confinement.  He  must 
have  known  that  the  breach  of  warranty  would,  in  all  probabil- 
ty,  lead  to  the  result  which  actually  followed. 

So,  too,  any  increased  coet  to  which  a  person  is  put  from  the 
necessity  of  doing  himself  what  he  had  contracted  that   some- 


free  from 
disease. 


{p)  Prelin  r.  Royal  Bank  of 
Liverpool,  L.  R.  5  Ex.  at  p.  100. 

(q)  McMahon  v.  Field.  50  L. 
J.,  Q.  B.,  552. 

(r)  Valpv  v.  Oakelv,  16  Q.  B. 
941  :  Ogle  v.  Vane,   L.  R.  2  Q. 


B.  275. 

(s)  Brown  v.  Muller,  L.  R.  7 
Ex.  319. 

(t)  Smith  ».  Green,  L.  R.  1  C. 
P.  D.  92  ;  and  see  Mullett  v. 
Mason,  L.  R.  1  C.  P.  D.  559. 


"MEASURE  OP  DAMAGES  IN  CONTRACT.  241 

one  else  should  do  lor  him  is  recoverable,  if  what  he  does  is 
the  fair  and  reasonable  thing  to  do  under  the  circumstances.  On 
this  point  Le  Blanche  v.  London  and  North  Western  Hallway  Co. 
may  be  consulted  (m). 

(2.)  Damages,  not  arising  naturally,  hut  from  circumstances pecvr  Special  cir- 
liar  to  the  special  case,  are  not  recoverable  unless  the  special  circuin-  cumstances. 
stances  were  known  to  the  person  who  has  broken  the  contract. 

The  leading  case  went  off  on  this  point.  The  special  circum- 
stances, although  hinted  at,  were  not  so  fully  disclosed  that  the 
defendants  were  aware  that  the  want  of  the  shaft  Avas  the  only 
thing  which  kept  the  mills  idle.  The  case  of  Home  r.  Midland  Shoes  for  the 
hail  way  Co.  (a;)  well  illustrates  this  rule.  Early  in  1871  the  French  army, 
plaintiffs  contracted  to  supply  a  quantity  of  shoes  at  4s.  a  pair 
for  the  use  of  the  French  army.  They  were  to  be  delived  by  a 
particular  day,  or  they  would  be  thrown  back  on  the  plaintiffs' 
hands.  The  plaintiffs  delivered  these  shoes  in  good  time  at  Ket- 
tering, and  gave  notice  to  the  station-master  there  that  they  were 
under  contract  to  deliver  on  that  day,  and  that,  if  not  so  deliv- 
ered, the  shoes  would  be  thrown  on  their  hands  ;  but  no  further 
information  was  given.  Somehow,  the  shoes  were  not  delivered 
in  time,  and,  doing  the  best  they  could,  the  plaintiffs  could  not 
sell  the  rejected  shoes  for  more  than  2s.  9(/.  a  pair,  and  the  plain- 
tiffs brought  this  action  to  recover  from  the  company  the  differ- 
ence between  As.  and  2s.  9d.  on  each  pair.  It  appeared  that  the 
ordinary  market  price  had  not  varied  between  the  day  on  which 
the  boots  were  due  and  the  day  on  which  they  were  received, 
and  it  was  held  that,  under  the  circumstances,  the  defendants 
were  not  liable  for  the  special  loss  which  had  arisen. 

In  another  case  (y),  this  rule  came  under  consideration  in  a  Cory  v. 
somewhat  anomalous  state  of  circumstances,  the  parties  not  ha v-  Thames  Iron- 
ing in  contemplation  the  same  use  for  the  article  to  be  supplied,  works  Com- 
which  was  of  a  novel  character.     The  defendants  agreed  to  sell  ^'    •*' 
to  the  plaintiff  the  hull  of  a  floating  boom  derrick  and  deliver  it 
at  a  time  fixed.     They  believed  that  the  plaintiff  wanted  it  as  a 
coal-store,  but,  as  a  matter  of  fact,  he  intended  to  use  it  for  the 
purpose  of  transhipping  coals  from  colliers  into  barges.     The 
former  was  the  most  obvious  use  to  which  such  a  vessel  would  be 
applied,  and  the  defendants  had  no  notice  or  knowledge  of  the 
special  object  for  which  it  was  purchased.     The  defendants  be- 
ing late  in  their  delivery  of  the  derrick  to  the  plaintiff,  were  held 

(u)  See  p.  64.  banker's,  the  consequence  be- 
(x)  L.  R.  7  C.  P.  583;  8  C.  P.  ingthatabill  discounter  refused 
131;  and  see  Morris  v.  Lond.  &  to  deal  any  longer  with  the 
Westm.  Bank,  1  C.  &  E.  498,  plaintiff's  firm, 
which  was  an  action  to  recover  (y)  Corry  v.  Thames  Iron- 
damages  for  the  dishonour  of  a  works  Co.,  L.  R.  3  Q.  B.  181. 
cheque  through  a  mistake  of  the 


known  to 
party  breal 


242  MEASURE    OF   DAMAGES    IN    CONTRACT. 

liable  for  the  loss  of  such  profits  as  would  have  beeu  made  dur- 
ing  the  period  of  delay  by  the  use  of  the  vessel  as  a  coal-store, 
but  not  lor  any  further  loss  or  damage  that  had  occurred. 
Special  cir-  (3.)    Where  the  special  circumstances  are  known  to  the  person  icho 

eumstances      breaks  the  contract,  and  the  damage  complained  0/  flows  naturally 
from  the  breach  under  those  special  circumstances,  such  special  dam- 
ind  dam-  a9e  's  recoverable. 
age  flowing  But  this  rule  cannot,  it  seems,  be  received  without  the  impor- 

naturally  taut  qualification  that  (z)  "The  knowledge  must  be  brought 
roin  rea<  1.  j^me  to  the  party  sought  to  be  charged  under  such  circumstances 
fll  "rrl  1°  1'1:lt  ne  mus*  know  that  the  person  he  contracts  with  reasonably 
believes  that  he  accepts  the  contract  with  thespieial  condition  attached 
to  it."  And  this  expression  of  opinion  was  subsequently  con- 
firmed by  Willes,  J.,  in  the  case  of  Home  r.  Midland  Bailway 
Co.  ('a),  just  referred  to,  and  also  by  the  observations  of  Black- 
burn, J.,  when  giving  judgment  iu  the  same  case.  That  learned 
judge  remarked,  "In  JIadley  v.  Baxendale  it  is  said  that,  if  spe- 
cial notice  be  given,  the  damage  is  recoverable,  though  there  be 
no  special  contract,  and  this  has  been  repeated  in  various  cases  ; 
but  it  is  noticeable  that  there  seems  to  be  no  case  where  it  has 
been  held  that  if  notice  be  given  abnormal  damages  may  be  re- 
covered; and  I  should  be  inclined  to  agree  with  my  brother  Mar- 
tin that  they  cannot  unless  there  be  a  contract.  But  it  is  not 
necessary  to  decide  this  question,  because  here  in  fact  there  was 
no  such  notice;  the  notice  here  given  conveys  full  information 
that,  the  day  is  of  consequence,  and  that  the  goods  should  be  de- 
livered on  the  3rd  of  February  if  the  defendants  could,  from 
which  a  contract  of  sale  on  which  there  was  a  profit  might  be  in- 
ferred; but  there  was  no  notice  that  the  defendants  would  have 
to  pay  the  amount  of  loss  claimed.  Therefore,  it  is  not  neces- 
sary to  decide  whether  the  dictum  in  Sadley  v.  Baxendale  is  law, 
though  I  confess  that  at  present  I  think  it  a  mistake." 

Take  the  case  of  a  defendant  who  has  no  option  of  refusing  the 
contract,  and  is  not  at  liberty  to  require  a  higher  rate  of  remun- 
eration; can  it  be  contended  that  the  mere  fact  that  he  proceeded 
in  the  contract  with  knowledge  of  the  special  circumstances  in 
itself  gives  rise  to  an  undertaking  to  incur  a  liability  for  special 
damages?  As,  for  example,  where  a  railway  passenger,  on  buy- 
ing his  ticket,  informs  the  clerk  of  some  particular  loss  that 
would  arise  on  his  being  late. 

Under  the  circumstances  last  supposed  the  learned  author  of 
Mayne  on  Damages  says  (b)  that  "  Even  if  there  were  an  express 
contract  by  the  defendant  to  pay  for  special  damages,  it  might 
be  questioned  whether  such  a  contract  would  not  be  void  for 
want  of  consideration." 

(z)  Per  Willes,  J.,  in  British         («)  42  L.  J.,  C.  P.,  61. 
Columbia  Saw  Mill  Co.  v.  Net-         (6)  3rd  ed.,  p.  33. 
tleship,  L.  E.  3  C.  P. 


MEASURE    OF   DAMAGES    IN    CONTRACT.  243 

There  is,  however,  a  case  (c)  which  deserves  careful  attention, 
ami  which  at  first  sight  appears  to  militate  against  the  views  that 
have  just  been  expressed.  An  action  was  brought  by  a  cattle- Spice  sam- 
spice  manufacturer  against  a  railway  company  for  not  delivering  pl^S  too  late 
spice  samples,  &c,  which  the  plaintiff  had  been  exhibiting  at  a  show, 
cattle-show  at  Bedford,  in  time  for  another  show  at  Newcastle- 
on-Tyne.  The  plaintiff  had  not  distinctly  informed  the  defend- 
ants that  the  samples  were  intended  for  exhibition  at  the  New- 
castle show,  but  he  had  addressed  them,  "The  Show  Ground, 
Neweastle-on-Tyne,"  and  had  stated  that  they  must  be  there  on 
Monday  certain,  and  there  could  really  have- been  no  doubt  as  to 
what  the  man's  purpose  was.  The  plaintiff  was  held  entitled  to 
recover  damages  for  the.  loss  which  he  had  sustained  by  reason  of 
the  delay.  The  learned  author  to  whom  reference  has  just  been 
made  observes  on  this  case  ((/).  "Notwithstanding  some  expres- 
sions in  the  judgment,  it  appears  that  the  case  really  came  under 
the  first  rule  in  Hartley  v.  Baxendale,  and  not  under  the  third. 
Goods  are  consigned  with  a  contract  that  they  are  to  be  delivered 
at  a  particular  place  on  a  particular  day.  The  contract  is  broken. 
What  are  the  damages'?  They  are  the  damages  naturally  arising 
from  the  non- arrival  of  the  particular  sort  of  goods.  The  evi- 
dence as  to  knowledge  simply  went  to  show  that  the  defendants 
knew  what  sort  of  goods  they  were.  A  carrier  will  be  liable  to 
different  damages  according  as  be  delays  a  basket  of  fish  or  a 
basket  of  coals,  for  the  simple  reason  that  delay  frustrates  the 
object  of  sending  the  fish,  but  not  that  of  sending  the  coals. 
Here  the  plaintiff  claimed  no  special  damages,  hut  merely  general 
damages  for  the  failure  of  his  object  in  sending  the  goods." 

Other  cases  on  this  subject  which  may  be  consulted  are  Mc-  Other  cases. 
Mahon  r.  Field,  T  Q.  B.  D.  591;  Wigsell  i>.  School  for  Indigent 
Blind,  8  Q.  B.  D.  357;  Thol  v.  Henderson,  8  Q.  B.  D.  457;  Lilley 
v.  Doubleday,  7  Q.  B.  D.  510;  Ashdown  v.  Ingamells,  5  Ex.  D. 
280;  Jenkins  r.  Jones,  9  Q.  B.  D.  128;  Baldwin  v.  L.  C.  &  D. 
By.  Co.,  9  Q.  B.  D.  582;  Cassaboglon  v.  Gibbs,  51  L.  J.,  Q.  B. 
593;  Hawes  u.  S.  E.  Ry.  Co.,  54  L.  J.,  Q.  B.  D.  174.  Grebert- 
Bognis  v.  Nugent,  54  L.  J.,  Q.  B.  D.  511;  The  Notting  Hill,  9  P. 
T).  105;  Skinner  v.  City  of  London  Marine  Insurance  Corporation, 
14  Q.  B.  D.  882.  AVhithani  v.  Kershaw,  16  Q.  B.  I).  613;  Kiddle 
r.  Lovett.  l(i  Q.  B.  D.  605;  and  Tredegar  Iron  and  Coal  Co.  v. 
Gielgud,  1  C.  &  E.  27. 

(c)  Simpson   v.    L.  &   N.  W.         (d)  Mayne   on   damages,  3rd 
Ey.  Co.,  L.  E.  I.  Q.  B.  D..274.     ed.,  p.  32. 


244  PENALTIES    AND    LIQUIDATED    DAMAGES. 


Penalties  and  Liquidated  Damages. 


[100.]  KEMBLE  v.  FARREN. 

[6  Bing.  141  (1829).] 

Something  more  than  half  a  century  ago  an  actor  and 
a  manager  sat  down  and  made  an  agreement.  The  actor 
on  his  part  undertook  to  act  as  principal  comedian  at 
the  manager's  theatre  (Covent  Garden)  for  four  seasons, 
and  in  all  things  to  conform  to  the  regulations  of  the 
theatre;  while  the  manager  agreed  to  pay  the  actor  £3 
6s.  8d.  a  night,  and  to  allow  him  a  benefit  once  every 
season.  And  the  agreement  contained  this  clause,  "that 
if  either  of  the  parties  should  neglect  or  refuse  to  ful- 
fil the  said  agreement,  or  any  part  thereof,  or  any  stip- 
ulation therein  contained,  such  party  should  pay  to  the 
other  the  sum  of  £1000,  to  which  sum  it  was  thereby 
agreed  that  the  damages  sustained  by  any  such  omis- 
sion, neglect,  or  refusal  should  amount;  and  which  sum 
was  thereby  declared  by  the  said  parties  to  be  liquida- 
ted and  ascertained  damages,  and  not  a  penalty  or  penal 
sum,  or  in  the  nature  thereof." 

For  some  reason  or  other — it  does  not  matter  what — 
during  the  second  season  the  actor  refused  to  act,  and 
the  manager  now  went  to  law  to  recover  the  whole  £1000 
mentioned  in  the  agreement,  although  he  was  quite  pre 
pared  to  admit  that  he  had  not  sustained  damage  to  a 
greater  extent  than  £750. 

The  manager,  however,  did  not  succeed,  for  the  court 
said  that  it  could  never  be  taken  to  be  the  intention  of 
the  parties  that  the  whole  £1000  should  instantly  be- 
come payable  on  the  happening  of  any  breach,  however 
trifling  (e). 

(e)  See  8  &  9  Will.  III.  c.  11,  s.  8. 


PENALTIES    AND    LIQUIDATED    DAMAGES.  245 

It  is  not  always,  however,  that  a  court  will  interfere  in  this  Question  of 
way  and  pronounce  what  the  parties — who  ought  to  know  best —  intention, 
call  liquidated  damages  to  be  really  only  a  penalty.     If  the  agree- 
ment, for  instance,  were  not,  as   it  was  in  Kemble  v.  Farren,  one 
containing  various  stipulations  of  various  degrees  of  importance,  but 
if  there  were  only  one  event  upon  which  the  money  was  to  become  Qn]y  one 
payable,  or  if  there  were- several  events  but  the  damages  impossible  event. 
accurately  to  measure,  then  no  attempt  to  turn  liquidated  damages  Damages  im- 
into  a  mere  penalty  would  be  successful  ;  and  in  such  cases  it  possible  to 
would  be  of  no  consequence  whether  in  the  contract  the  sum  to  measure- 
be  paid  in  the  event  of  breach  was  called  "  a  penalty  "  or  "liqui-  Name  lm- 
dated  damages,"  because  the  court  will  look  to  the  meaning  and 
effect  of  the  contract  itself  as  disclosing  the  intention  of -the  partit  s, 
and,  having  satisfied  itself  on  that  point,  does  not  care  much  for 
the  term  they  happen  to  have  selected  from  Johnson's  Diction- 
ary (/). 

About  forty  years  ago,  two  London  solicitors  dissolved  part-  Galsworthy 
nership,  one  of  them  covenanting  not  to  practise  during  the  next  v-  Strutt. 
seven  years  within  fifty  miles  of  Ely  Place,  nor  interfere  with  or 
influence  any  of  the  clients  of  the  late  co-partnership  ;  if  he  in  any 
way  infringed  the  covenant,  he  was  to  pay  £1000  "as  and  for 
liquidated  damages,  and  not  by  way  of  penalty.''  On  breach  of 
this  covenant,  it  was  held  that,  no  matter  how  slight  the  damage 
was,  the  whole  £1000  had  to  be  paid  (g).  "  Parties,"  said  Parke, 
B.,  "are  bound  by  their  contracts,  if  those  contracts  be  clearly 
made.  It  is  clear  that  the  defendant  stipulated  to  pay  £1000  for 
the  breach  of  any  one  of  the  conditions  mentioned  ;  and  they  are 
such  that  the  damage  arising  from  the  violation  of  any  of  them  can- 
not he  exactly  csti)natcd  beforehand. 

In  Sainter  v.  Ferguson  (A)  the  facts  were  very  similar,  but  the  gajnter  v 
word  "  penalty  "  was  used  in  specifying  the  sum  to  be  paid  and  Ferguson, 
there, was  only  one  event  on  which  the  money  was  to  become 
payable.      "We  can  only  give  effect,"  said  the  court,  "to  the 
contract  of  the  parties  by  holding  the  £500  to  be  liquidated  dam- 
ages, and  not  a  mere  penalty." 

It  is  to  be  observed  that  when  a  covenant  is  secured  by  a  pen-  Election  on 
alty,  the  obligee  on  breach  has  an   election.     Either  he  may  go  breach, 
for  the  penalty  and  be  satisfied  with  that,  or  he  may  sue  on  the 
covenant  and  recover  more  or  less  according  to  his  merits.     In 
the  former  case,  the  contract  is  rescinded,  and  the  penalty  be- 
comes the  debt  in  law  (/). 

On  the  subject  of  equitable  relief  against  penalties,  the  student  Equitable 
is  referred  to  Peachy  v.  Somerset  (/-•),  Sloman  v.  Walter  (/),  and  the  relief. 

(/)  Per  Chainbre7j7,  in  Ast-  (/t)  7  C.  B.  716. 

ley  v.  Weldon,  2  B.  &  P.  354  ;  (?)  Winter  v.  Trimmer,  1  W. 

and  see  Sparrow  v.  Paris,  7  H.  Bl.  395,  and  Harrison  v.  Wright, 

&  N.  594.  13  East,  433. 

(</)   Galsworthy  v.  Strutt,    1  (k)  1  Stra.  447. 

Ex.  659.  (0  1  Bro.  C.  C.  418. 


246 


PENALTIES    AND    LIQUIDATED    DAMAGES. 


Protector 
Loan  Co.  ' 
Grice. 


Other  impor 
taut  cases. 


recent  case  of  the  Protector  Loan  Co.  v.  Grice  (m).  In  the  last 
mentioned  case  it  appeared  that  the  plaintiffs  had  lent  money  to 
a  man  named  Simpson  on  his  bond,  under  which  repayment  was 
to  be  made  by  instalments,  the  whole  of  the  instalment*  to  become 
payable  at  once  if  default  mis  made  in  the  payment  of  anyone  of  them. 
the  defendant  as  surety  executed  the  bond,  and,  default  having 
been  made  in  the  pajrment  of  one  instalment,  this  action  was 
brought  for  the  entire  balance  of  unpaid  instalments.  "The  doc- 
trine in  equity,"  said  BaggaHay,  L.J.,  ''is  stated  by  Lord  Mac- 
clesfield, L.C.,  in  Peachy  v.  Duke  of  Somerset:  '  The  true  ground 
of  relief  against  penalties' is  from  the  original  intent  of  the  cast- 
where  the  money  is  designed  only  to  secure  money,  and  the  court 
gives  him  all  that  he  expected  or  desired  ;'  but  it  has  long  been 
established  that  relief  in  equity  is  also  given  where  the  penalty 
is  intended  to  secure  the  performance  of  a  collateral  object ;  Sloman 
v.  Walter.  Familiar  instances  of  the  relief  afforded  in  equity 
may  be  found  in  those  cases  where  a  default  has  occurred  in  re- 
payment of  a  loan  secured  by  a  mortgage  ;  but  where  the  intent  is 
not  simply  to  secure  a  sum  of  money,  or  the  enjoyment  of  a  collateral 
object,  equity  docs  not  relieve.  It  may  be  assumed,  from  the  rela- 
tion of  the  parties,  that  they  intended  to  carry  out  the  terms  of 
the  agreement ;  it  was  competent  to  them  to  determine  that  the 
loan  should  be  repayable  in  the  manner  mentioned  ;  it  was  worth 
the  while  of  the  parties  that  the  money  should  be  borrowed  upon 
the  terms  mentioned  in  the  condition  ;  and  it  would  be  an  act  of 
injustice  to  the  leaders  to  give  judgment  for  the  defendant." 

Other  cases  on  the  subject-matter  of  this  note  which  may  ad- 
vantageously be  referred  to  are  Thompson  v.  Hudson,  L.  E.  4  H. 
L.  1  ;  Eeynolds  v.  Bridge,  6  E.  &  B.  528  ;  Mercer  v.  Irving,  E.  B. 
&  L.  563  ;  Howard  v.  Woodward,  34  L.  J.  Ch.  47  ;  Birch  v.  Steph- 
enson, 3  Taunt.  469  ;  Farrant  v.  Olmius,  3  B.  &A1.  692  ;  ex  parte 
Capper,  4  Ch.  D.  724  ;  Atkyns  v.  Kinnier.  4  Ex.  766  ;  Magee  v. 
Lavell,  L.  E.  9  C.  P.  Ill  ;  Lea  v.  Whitaker,  L.  E.  8  C.  P.  70  ; 
Sterne  v.  Beck,  32  L.  J.,  N.  S.,  682  ;  Mexborough  v.  Wood,  47  L. 
T.,  N.  S.,  516  ;  and,  last  but  not  least,  the  very  important  case 
ofWallisr.  Smith,  21  Ch.  1).  243,  where  the  judgments  should 
be  carefully  perused. 

(m)  5  Q.  B.  D.  592. 


INJURIA    AND    DAMNUM. 


247 


Injuria  and  Damnum. 


ASHBY  v.  WHITE. 

[Lord  Raym.  938  (1703).] 

Through  Tory  trickery,  the  vote  of  a  respectable 
elector  at  Aylesbury  was  rejected  at  the  poll.  As  it 
happened,  the  candidates  for  whom  the  gentleman  had 
intended  to  vote  were  elected.  But  in  spite  of  his 
thus  having  sustained  no  actual  damage,  he  brought 
an  action  against  the  returning  officer,  and,  after  much 
discussion,  it  was-  held  that  such  an  action  could  be 
maintained. 


[101.] 


CHASEMORE  v.  RICHARDS. 
[7  H.  L.  C.  349  (1859).] 

A  town  cannot  easily  have  too  good  a  supply  of 
water,  and  no  doubt  the  Local  Board  of  Health  for  the 
town  of  Croydon  were  public  benefactors  when  in  1851 
they  sank  a  substantial  well  and  supplied  the  good 
people  of  Croydon  with  pure  water  at-  the  rate  of 
600,000  gallons  a  day.  But  the  public  gain  was  Mr. 
Chasemore's  loss.  That  gentleman  was  the  occupier  of 
a  mill  situated  on  the  river  Wandle  about  a  mile  from 
Croydon,  and  had — he  and  his  predecessors — used  the 
river  for  the  last  seventy  years  for  turning  his  wheels. 
It  may  well  be  imagined,  therefore,  that  he  was  ex- 
tremely disgusted  to  find  that  the  effect  of  what  the 
Local  Board  had  done  was  to  prevent  an  enormous 
quantity  of  water  from  ever  reaching  the  Wandle  or  his 
mill.     He  went  to  law,  but  did  not  win.     The  judges 


[102.] 


248 


INJURIA    AND    DAMNUM. 


told  him  that,  though  he  was  much  to  be  sympathised 
with,  he  had  no  legal  remedy.  There  was  damnum, 
they  said,  but  not  injuria. 


Injuria  and 
dam  num. 


De  minimis 
non  curat  lex, 


Novelty  no 
abjection. 


Damnum  sine 
injuria. 


Rights  of 
riprarian 

ownership. 


These  two  eases  pretty  clearly  illustrate  the  distinction  be- 
tween injuria  sine  damno  and  damnum  /tine  injuria.  Wherever  a 
person  Ins  sustained  what  the  law  calls  an  "injury,''  there  he 
may  bring  an  action  without  being  under  the  necessity  of  prov- 
ing special  damage,  because  the  .injury  itself  is  taken  to  imply 
damage.  A  banker  once  dishonoured  the  cheque  of  a  customer 
who  really  had  plenty  of  money  in  the  bank,  and  the  customer 
therefore  brought  an  action  against  him.  It  was  held  that  the 
action  was  maintainable,  although  the  plaintiff  had  not  sus- 
tained any  loss  whatever  by  the  banker's  wrongful  act.  There 
was  no  damnum,  true;  but  there  was  injuria,  and  that  was  suffi- 
cient (n).  So  an  action  lies  against  a  man  who  trespasses  in  my 
field,  although  he  does  me  no  pecuniary  injury  (o). 

In  Ashby  v.  White  the  defendant's  counsel  cited  unsuccesfully 
the  maxim  de  minimis  non  curat  lex,  contending  that,  even  if 
Ashby  had  sustained  some  damage,  it  was  of  so  inconsiderable  a 
character  as  to  be  unworthy  of  notice. 

It  was  also  objected  that  there  was  no  precedent  for  such  an  ac- 
tion, but  Lord  Holt  replied  that  if  men  will  multiply  injuries,  ac- 
tions must  be  multiplied  too. 

On  the  other  hand,  it  is  not  everything  that  the  law  regards  as 
an  injury.  The  most  terrible  wrongs  may  be  inflicted  by  one 
man  on  another  without  legal  redress  being  obtainable.  If  you 
are  driving  a  flourishing  trade  as  a  schoolmaster,  and  I  come  and 
set  up  a  school  just  Opposite  to  yours,  and  the  boys  desert  you 
and  flock  to  me,  there  is  no  injuria  here,  though  I  may  have 
turned  schoolmaster  for  the  express  purpose  of  ruining  you.  It 
is  damnum  sine  injuria,  and  you  have  no  right  of  action  against 
me.  So,  too,  slander  and  seduction  are  not  always  actionable. 
See  also  Metr.  Asylums  District  Board  v.  Hill,  G  App.  Ca.,  193. 

Chasemore  v.  Richards  is  a  case  of  some  importance  on  the  sub- 
ject of  watercourses.  Every  riparian  owner  is  entitled  to  take  a 
reasonable  quantity  of  the  water  flowing  in  a  natural  stream, 
whether  tidal  and  navigable  or  not  (/>),  for  his  domestic  or  busi- 
ness requirements,  the  reasonbleness  depending  on  the  circum- 
stances of  each  case  (q).    When  no  material  injury  would  thereby 


(n)  Marzetti  v.  Williams,  1 
B.  &  Ad.  415. 

(o)  See  Sears  v.  Lyons,  2 
Stark.  317,  and  Nicklin  v.  Wil- 
liams. 10  Ex.  259. 


(j))  Lyon  r.  Fishmongers' 
Co.,  1  App.  Ca.  662. 

(j)  Sandwich  r.  G.  N.  Ky. 
Co.,  10  Ch.  D.  707. 


INJURIA    AND    DAMNUM.  249 

be  inflicted  on  lower  riparian  owners,    lie  may  even   divert  or  Diverting 

dam  (r);  but,  of  course,  when  he  dams,  he  must  not  let  the  water  and  damm- 
all  go  with  a  rush  so  as  to  flood  his  neighbour's  lands.  And  as  ^nS- 
the  riparian  owner  has  no  business  to  take  too  much  water,  so 
neither  can  he  pollute  the  stream;  and,  if  he  does  so,  it  will  he 
no  excuse  that  others  have  been  more  foul  than  he  has,  so  that 
his  particular  pollution  is  imperceptible  (s).  By  grant  or  pre- 
scription, however,  a  riparian  owner  may  be  entitled  to  pollute 
a  stream  (/). 

In  addition  to  the  riparian  owner's  rights  to  take  water  for  use,  pnrity  and 
and  to  have  it  pure,  he  has  a  right  to  the  stream's  natural  flow ;  flow, 
and  this  is  so  even  in  the  case  of  a  stream  flowing  underground  in  Under- 
a  definite  channel  or  tunnel  (m).      "  If  the  channel  or  course  un-  ground 
derground  is  known,  as  in  the  case  of  the  river  Mole,  it  cannot  stieams- 
be  interfered  with.     It  is  otherwise  when  nothing  is  known  as 
to  the  sources  of  supply  ;  in  that  case,   as  no  right  can  be  ac- 
quired against  the  owner  of  the  land  under  which  the  spring  ex- 
ists, he  may  do  as  he  pleases  with  it  "  (a:). 

The  right  to  use  an  artificial  stream  depends  on  the  circum-  Artificial 
stances  of  its  creation  ;  but  it  has  heen  held  that  the  flow  of  streams, 
water  from  a  drain  made  for  agricultural  improvements  for 
twenty  years  does  not  give  a  right  to  the  person  through  whose 
land  it  flowed  to  the  continuance  of  the  flow,  so  as  to  preclude 
the  proprietor  of  the  land  drained  from  altering  the  level  of  his 
drains  for  the  improvement  of  his  land,  and  so  cutting  off  the 
supply  (?/).  But  if  an  artificial  stream  is  ]iermancnt  in  its  charac- 
ter, a  right  to  the  uninterrupted  flow  of  the  water  may  be  ac- 
quired (z),  and  in  Sutclife  v.  Booth  (a)  it  was  held  that  a  water- 
course, though  artificial,  may  have  been  originally  made  under 
such  circumstances,  and  have  been  so  used,  as  to  give  all  the 
rights  that  the  riparian  proprietors  would  have  had  if  it  had  been 
a  natural  stream. 

There  is  no  natural  right  to  the  uninterrupted  flow  of  perco-  Percolating 
lating  streams  whose  course  is  undefined  and  unknown  (h).    But  streams, 
such  rights  may  be  granted  by  one  landowner  to  another  (c). 

Where  the  defendant,  by  draining  his  land,  drained  away  sub-  j,an(i  SVm. 
terranean    water  from  under  the  plaintiffs   land,   and   thereby  ported  by 

(r)  Swindon  Waterworks  Co.  den  v.  The  Guardiansof  Glutton  water. 

v.  Wilts  Canal  Co.,  L.  R.  7  H.  Union,  1  H.  &  N.  630. 
L.  704,  and  see  Ormerod  v.  Tod-         (y)  Greatrex  v.   Hay  ward,   8 

morden,  11  Q.  B.   D.   155,   and  Ex.  291. 

Kensit  o.  G.  E.  Ry.  Co.,  32  W.         (z)  See  Arkwright  v.  Gell,    5 

R.  885.  M.  &  W.  203. 

(s)  Wood  v.  Waud,  3  Ex.  748,         (a)  32  L.  J.,  Q.  B.,  136  ;  and 

and  see  Ballard  v.   Tomlinson,  see  Roberts  v.    Richards,  50  L. 

29  Ch.  D.  115.  J.  Ch.  297. 

(OEmbrey?'.  Owen.6Ex.  353.         (6)  Acton  v.  B^ndell,  12  M. 

(u)  Holker  r.  Poritt,   L.  R.  8  &  W.  324. 
Ex.   107.     But  see    Ballard   v.         (c)  Whitehead  v.  Parks,  2  H 

Tomlinson,  29  Ch.  D.  115.  &  N.  870. 

(x)  Per  Pollock,  C.B:,  in  Dud- 


250  INJURIA    AND    DAMNUM. 

Water  sup-  caused  it  to  sink,  it  was  held  that  no  action  could  be  brought  (d). 
ported  by  But  the  defendant  would  be  liable  if,  in  drawing  oft' subterranean 
water.  water,  he  were  to  draw  off  water  flowing  in  a  defined  surface 

channel  (e). 
Other  ini-  r^c  following  cases  on  watercourses  may  also  be  usefully  im- 

portant ferred  to: — Bealey  v.  Shaw,  6  East,   208  ;  Saunders  v.   Newman, 

cases.  i  B.  &  A.  258  ;  Wright  v.  Howard,  1  Sim.  &  Stuart,  190  ;  Mason 

r.  Hill,  ;;  B.  &  Ad.  304  ;  Hodgkinson  v.  Eunor,  4   B.    &  S.    229  ; 

and  Mayor  v.  Chad  wick,  11  A.  &  E.  571. 
Death  of  tort      An  action  for  a  tort  cannot  be  brought,  after  his  death,  against 
feasor.  the  representatives  of  the  person  who  has  committed  it,  because 

actio  personalis  moritur  cum  persona  (/).     But  see  3  &4  Will.  IV. 

c.  42,  and  9  &  10  Vict.  c.  93. 


Ancient  Liqlits. 


[103.]  YATES  v.  JACK. 

[L.  R.  1  Ch.  295  (1866).] 

In  this  case  the  plaintiff  was  a  merchant  carrying  on 
a  large  business  at  a  warehouse  in  London,  and  he 
asked  for  an  injunction  restraining  his  opposite  neigh- 
.  bour  from  erecting  a  building  so  as  to  obstruct  his  an- 
cient lights.  For  the  defendant  it  was  contended  that 
no  injury  would  be  done  to  the  plaintiff  by  the  new 
buildings,  for  he  would  still  have  plenty  of  light  for  his 
business.  But  it  was  held  that,  even  if  that  were  so,  it 
did  not  matter;  because  the  owner  of  ancient  lights  is 
entitled  not  only  to  sufficient  light  for  the  purpose  of 
his  then  business,  but  to  all  the  light  which  he  had  en- 
joyed previously  to  the  interruption  sought  to  be  re- 
strained. "  The  right  conferred  or  recognised  by  the 
statute  2  &  3  Will.  IV.  c.  71,"  said  Lord  Cranworth,  L. 
C,  "is  an  absolute  indefeasible  right  to  the  enjoyment 

{(I)  Popplewell  v.  Hodkinson,  (/)  See  Kirk  v.  Todd,  21  Ch. 

L.  R.  4  Ex.  248.  D.  484,  and  Bowker  v.  Evans, 

(e)  Grand  Junction  Canal  Co.  15  Q.  B.  J).  565. 
e.  Shugar,  L.  R.  6  Ch.  483. 


ANCIENT    LIGHTS.  251 

of  the  light,  without  reference  to  the  purpose  for  which 
it  has  been  used." 

The  third  section  of  the  Prescription  Act  (g)  says  that  "When  Section  3. 
the  access  and  use  of  light  to  and  for  any  dwelling-house,  work- 
shop, or  other  building   shall  have  been  actually  enjoyed  there- 
with for  the  full  period  of  twenty  years  without  interruption, 
the  right  thereto  shall  be  deemed  absolute  and  indefeasible," 
unless  the  same  was  enjoyed  merely  by  written  consent.     An 
indefeasible  right,  however,  to  the  access  and  use  of  light  may  Common 
be  gained  by  prescription  at  common  law,  independently  of  the  law  prescrip- 
Act  (ft).  tion- 

Section  4  of  the  Prescription  Act  points  out  the  way  in  which  "  Without  in- 
the  enjoyment  may  be  effectively  interrupted.  Nothing  is  to  be  terruption. " 
deemed  an  interruption  unless  it  has  been  submitted  to  for  a  year 
after  notice  (/).  Flight  v.  Thomas  (k)  is  a  leading  case  on  the 
construction  of  this  section.  It  was  held  in  that  case  that  an 
enjoyment  for  19  years  and  330  days,  followed  by  an  interruption 
of  35  days  just  before  the  commencement  of  the  action,  was  suffi- 
cient to  establish  the  right. 

A  right  to  unobstructed  light  cannot  be  acquired  in  favour  of  Open  spaces. 
open  ground,  but  only  in  favour  of  buildings  (I). 

The  leading  case  was  followed  in  Moore  v.   Hall   (m),   where  Different  ap- 
Mcllor,  J.,  said,  "I  do  not  think  the  present  actual  condition  of  plication  of 
the  premises  is  the  measure  of  the  amount  of  damage  in  estimat-  premises  to 
ing  the  damages,  you  ought  not,  in  my  opinion,  to  stereotype  the    ,   ,    •, 
existing  condition  of  the  premises,  but  to  calculate  the  reasonable 
probabilities  of  a  different  application  of  them."     The  dim  religious 
light  which  is  good  enough  for  the  smoking  room  will  not  do  for 
the  library;  and  there  is  no  reason  why  I  should  not  give  up  the 
fragrant  weed  and  convert  my  smoking  room  into  a  library  (n). 

If  a  person  opens  new  lights,  or  enlarges  old  ones,  these  new  ™  , 

lights  or  enlargements  maybe  obstructed  with  impunity;  but  the  ,   c 

original  lights  are  still  entitled  to  protection  (o).     The  recent  case        e"  aJ^"ut 
of  Fowlers  v.  Walker  (p)  should  be  referred  to  on  this  branch  of  +/^e1,-„1lf     ^ 

(g)  2  &  3  Will.  IV.  c.  71.  (n)  See    Aynsley  v.   Glover, 

(h)  Aynsley  v.  Glover,  L.  R.  supra. 

18  Eq.  541;  Kelk  ?•.  Pearson, L.  (o)  See   National   Ins.  Co.  v. 

R.  6   Ch.   763;  and  Norfolk    i>.  Prnd.  Ass.  Co.,   6   Ch.   D.  757; 

Arbuthnot,  5  C.  P.  D.  390.  Barnes  v.  Loach,    4   Q.   B.'  Dv 

(/)  See  Seldom'.  Bank  of  Bol-  494;  and  Eccl.  Comm.  v.  Kino, 

ton,  51  L.  J.,  Ch.  542.  14  Ch.  D.  213. 

(k)  11  A.  &  E.  688  ;  and  see  (p)  51  L.  J.  Ch.  443,  and  see 

Glover  v.  Coleman,  L.  R.  10  C.  Scott  v.  Pape,  53  L.  T.    N.  S. 

P.  108.  598,  where  it  was  held  that  an 

(I)  Potts  v.    Smith,    L.    R.  6  easement  of  ancient  lights  will 

Eq.  311, and  Roberts  r.  Macord,  not  necessarily   be  treated  as 

1  M.  &  Rob.  230.  abandoned    because     the    old 

(m)  3  Q.  B.  D.  178,  expressly  building  has  been  pulled  down 

overruling   Martin   v.  Goble,  1  and   another   substituted,    and 

Camp.  320.  Raper  v.  Fortescue,  W.  N.  Ap. 

3rd,  1886. 


to  light. 


252 


ANCIENT    LIGHTS. 


Abandon- 
ment ofright 


Suspension. 


Must  no  de- 
rogate from 
grant. 


the  subject.  In  1868  three  cottages  at  Liverpool  containing  an- 
cient lights  were  pulled  down,  and  a  large  warehouse  Avas  built 
on  their  site  containing  three  large  windows.  There  was  no  sat- 
isfactory evidence  as  to  the  position  of  the  windows  in  the  cot- 
tages,  though  it  was  admitted  that  small  parts  of  the  new  windows 
might  occupy  portions  of  space  through  tokich  light  was  admitted  to  the 
cottages.  In  an  action  against  some  people  who  proposed  to  darken, 
it  was  held  that,  in  the  absence  of  evidence  as  to  the  position  of 
the  ancient  lights,  the  easement  could  not  be  maintained  as  to 
the  new  building.  "It  is  a  novel  case,"  said  James,  L.J.,  "upon 
this  point,  that  it  is  not  the  case  of  enlarged  windows,  but  of  old 
cottages  converted  into  a  magnificent  block  of  warehouses.  The 
whole  structure  has  been  altered,  and  the  only  suggestion  made 
is  that  in  this  palatial  store  which  has  superseded  the  humble 
cottages,  there  are  some  portions  of  the  existing  windows  which 
coincide  with  some  portions  of  the  old  windows. 
Where  there  has  been  such  a  change,  it  is  incumbent  on  the  plain- 
tiffs to  give  satisfactory  evidence  that  there  is  so  much  of  the  old 
aperture  of  the  window  existing  that  the  court  can  see  that  the 
diminution  of  light  creates  substantial  interference  with  the 
plaintiff's  right." 

The  right  to  ancient  lights  is  abandoned  by  pulling  down  the 
building,  or  blocking  up  the  lights,  with  the  intention  of  aban- 
doning (q).  The  question  of  intention  is  one  of  fact,  depending 
on  the  circumstances  of  each  case. 

The  acquiring  of  a  right  to  light  under  the  statute  is  suspended 
during  the  continuance  of  a  unity  of  possession  of  the  dominant 
and  servient  tenements  (r). 

A  man  cannot  derogate  from  his  own  grant. 

"  There  can  be  no  doubt  that  the  law  as  laid  down  by  Palmer 
v.  Fletcher  (s)  is  the  law  of  the  present  day;  that  is,  that  where  a 
man  grants  a  house  in  which  there  are  windows,  neither  he  nor  any- 
body claiming  under  him  can  stop  up  the  windows  or  destroy  the  lights. 
That  is  based  on  the  principle  that  a  man  shall  not  derogate  from 
his  own  grant;  and  it  makes  no  difference  whether  he  grants  the 
house  simply  as  a  house,or  whether  he  grants  the  house  with  the 
windows  or  the  lights  thereto  belonging.  In  both  cases  he  giants 
with,  the  apparent  easements  or  quasi  easements.  All  that  is  now, 
I  take  it,  settled  law. 

"  I  take  it  also  that  it  is  equally  settled  law  that  if  a  man  who 
has  a  house  and  land  grants  the  land  first,  reserving  the  house,  the 
purchaser  of  the  land  can  block  up  the  windows  of  the  house. 

"Then  there  comes  a  third  case.  Supposing  the  owner  of  the 
land  and  the  house  sells  the  house  and  the  land  at  the  same  mo- 


(q)  Moore  r.  Rawson,  3  B.  &         (r)  Ladyman  ».  Grave,  L.  R. 
C.  332,  and  Stokoe  v.  Singers,  8     6  Ch.  App.  763. 
E.  &  B.  31.  (a)  1  Sid.  167,  122. 


ANCIENT    LIGHTS.  253 

ment.  and  supposing  he  expressly  sells  the  house  with  the  lights, 
can  it  he  said  that  the  purchaser  of  the  land  is  entitled  to  block 
up  the  lights,  the  vendor  being  the  same  in  each  case,  and  both 
purchasers  being  aware  of  the  simultaneous  conveyances?  Cer- 
tainly not"  (0- 

Though  the  two  subjects  are  often  incorrectly  treated  as  if  ^ir. 
they  rested  on  the  same  principles,  a  right  to  air  is  quite  dis- 
tinct from  a  right  to  tight.  In  Webb  v.  Bird  (u)  it  was  held  that 
the  owner  of  a  windmill  could  not  under  section  2  of  the  Pre- 
scription Act  prevent  the  owner  of  adjoining  land  from  building 
so  as  to  interrupt  the  passage  of  air  to  the  mill,  although  it  had 
been  worked  by  this  air  for  more  than  twenty  years.  "That 
which  is  claimed  here,"  said  Willes,  J.,  in  the  court  below  (x),  Webb  r. 
"  amounts  to  neither  more  or  less  than  this — that  a  person  hav-  Gird- 
ing a  piece  of  ground,  and  building  a  windmill  upon  it,  acquires 
by  twenty  years'  enjoyment  a  right  to  prevent  the  proprietors  of 
all  the  surrounding  land  from  building  upon  it,  if  by  so  doing 
the  free  access  of  wind  from  any  quarter  should  be  impeded  or 
obstructed.  It  is  impossible  to  see  how  the  adjoining  owners 
could  prevent  the  acquisition  of  such  a  right,  except  by  combin- 
ing together  to  build  a  circular  wall  round  the  mill  within  twenty 
years.  It  would  be  absurd  to  hold  that  men's  rights  are  to  be 
made  dependent  on  anything  so  inconvenient  and  impracti- 
cable." 

So,  too,  in  the  recent  case  of  Bryant  v.  Lefever  (y),  it  was  held  Bryant  v. 
that  the  access  of  air  to  chimneys  cannot,  as  against  the  occupier  Lefever. 
of  neighbouring  land,  be  claimed  either  as  a  natural  right  of 
property  or  as  an  easement  by  prescription  from  the  time  of  legal 
memory,  or  by  a  lost  grant,  or  under  the  Prescription  Act. 

An  action,  however,  lies  in  cases  where  the  stoppage  of  air  is 
injurious  to  health  (z). 

It  is  scarcely  necessary  to  say  that  there  is  no  right  of  action  Interruption 
against  a  builder  who  comes  and  spoils  a  landscape  (a).  of  view. 


(t)  Per  Jessel,  M.R.,in  Allen  {y)  4  C.   P.   D.  172,  and  see 

v.  Taylor,   16  Ch.  D.  355;  and  the   still   more   recent  case   of 

see  Swansborough  v.  Coventry,  Harris  r.  De   Pinna,  54  L.  T.. 

9  Bing.  305;  Compton  v.  Rich-  N.  S.,  38. 

ards,  1  Price,  27;  Wheeldon  v.  (z)  City  of  London  Brewery 

Burrows,    12   Ch.    D.    31;    and  Co.    v.    Tennant,    L.   R.   9  Ch. 

Russell  v.  Watts,  10  App.   Ca.  App.  212. 

590.  (a)  Aldred's  case,   9  Coke's 

(w)  13  C.  B.,  N.  S.,  841.  Rep.  586. 

(*)  IOC.  B.,  N.  S.,  284. 


18  COMMON    LAW. 


254  SIC  UTERE  TUO  UT  ALIENUM  NON  L^EDAS. 


Sic  utere  tuo  ut  aliemtm  non  Icedas. 

[104.]  FLETCHER  v.  RYLANDS. 

[L.  R.  3  H.  L.  330  (1868).] 

Some  mill-owners  made  a  reservoir,  employing  a 
competent  engineer  and  first-class  workmen.  During 
the  construction  of  it,  the  workmen  came  upon  some 
old  vertical  mine  shafts,  of  the  existence  of  which  no 
one  was  previously  aware.  These  they  carefully  filled 
up  with  soil.  But,  when  the  water  came  to  be  put  into 
the  reservoir,  it  was  just  like  putting  it  into  an  empty 
flower  pot.  It  ran  through,  and  did  a  world  of  mis- 
chief to  the  neighboring  mines  of  Mr.  Fletcher,  who 
instituted  legal  proceedings.  The  mill -owners  de- 
fended the  action,  thinking  that  as  they  had  employed 
competent  persons  to  construct  the  reservoir  they 
would  not  be  held  responsible.  But  they  were  mis- 
taken. On  the  ground  that  a  person  who  brings  on 
his  land  anything  ivhich,  if  it  should  escape,  may  dam- 
age his  neighbour  does  so  at  his  peril,  negligence  or  not 
being  quite  immaterial,  they  were  compelled  to  com- 
pensate Mr.  Fletcher  for  the  damage  the  water  had  in- 
flicted on  his  mines. 


[105.]  NICHOLS  v.  MARSLAND. 

[2  Ex.  D.  1  (1876).] 

Mrs.  Marsland  was  the  proprietor  of  some  ornamen- 
tal lakes  in  the  county  of  Chester.  She  had  not  made 
them  herself.  They  had  existed  time  out  of  mind,  and 
had  always  borne  the  character  of  being  sober,  -respect- 


SIC  UTERE  TUO  1'T  ALIEXUM  NON  LJ^DAS.  255 

able,  well  behaved  lakes.  But  on  the  18th  of  June,  1872, 
there  came  a  tremendous  storm,  the  like  of  which  the 
oldest  inhabitant  could  not  remember.  The  rains  de- 
scended, the  floods  came,  and  Mrs.  Marsland's  lakes 
burst  their  fetters,  and,  in  the  riot  of  their  new-found 
liberty,  swept  away  two  or  three  county  bridges.  Nichols 
was  the  county  surveyor  of  Cheshire,  and  brought  this 
action  for  the  damage  done.  It  was  argued  for  the 
surveyor,  with  much  plausibility,  that  Mrs.  Marsland 
was  in  the  same  position  as  a  person  who  keeps  a  mis- 
chievous animal  with  knowledge  of  its  propensities,  and 
therefore  that  enquiry  as  to  whether  she  had  been  neg- 
ligent or  not  was  needless, — she  kept  the  lakes  at  her 
peril.  It  was  held,  however,  that  as  the  lakes  had  been 
carefully  constructed  and  maintained,  and  the  down- 
pour of  rain  was  so  extraordinary  as  to  amount  to  vis 
major,  the  defendant  was  not  responsible. 

"A  man  must  keep  his  own  filth  on  his  own  ground,"  says  an  old  Sic  ulere  tuo. 
case  in  Salkeld  (6),  and  the  principle  is  the  foundation  of  Fletcher 
v.  Rylands.  By  all  means  do  what  you  will  with  your  own,  hut 
sic  utere  tuo  ut  alienum  -non  l.xdas.  For  this  reason  when  a  man 
brings  on  to  his  land  anything  that  will  do  damage  to  his  neigh- 
bour if  it  escapes,  he  keeps  it  at  his  peril. 

Ballard  r.  Tomlinson  (c)  was  decided  on  this  ground.  The  Ballard  r. 
plaintiff  and  defendant  were  adjoining  landowners,  and  each  had  Tomlinson. 
a  deep  well  on  his  own  land,  the  plaintiff's  land  being  at  a  lower 
level  than  the  defendant's.  The  defendant  turned  sewage  from 
his  house  into  his  well,  and  so  polluted  the  water  that  percolated 
underground  from  the  defendant's  to  the  plaintiff's  land,  and 
consequently  the  water  which  came  into  the  plaintiff's  well  from 
such  percolating  water  when  he  used  his  well  by  pumping,  came 
adulterated  with  the  sewage  from  the  defendant's  well.  It  was 
held  that  the  plaintiff  had  a  right  of  action  against  the  defendant 
for  so  polluting  the  source  of  supply,  although,  until  the  plaintiff 
had  appropriated  it,  he  had  no  property  in  the  percolating  water 
under  his  land,  and  although  he  appropriated  such  water  by  the 
artificial  means  of  pumping. 

In  Hurdman  v.  The  North  Eastern  Railway  Company  (d),  the  The  mound. 

(b)  Tenant  v.  Goldwin,  1  Salk.         (c)  29  Ch.  Div.  1 15. 
360.  (d)  3  C.  P.  D.  168. 


25<>  SIC    UTERE    TUO    UT    ALIENUM    NON   LiEDAS. 

defendants  were  held  responsible  for  having  on  their  own  land 
built  an  artificial  mound  so  close  to  the  plaintiff's  house  as  to 
The  cow  that  render  it  damp  and  unhealthy  by  the  rain  oozing  through.   Firth 
swallowed        „.  The  Bowling  Iron  Company  (c),  where  the  plaintiff 's»cow  had 
tnewire.  swallowed  a  bit  of  decayed  wire  which  had  fallen  from  the  de- 

fendants' fence  and  been  poisoned  by  it,  is  to  the  same  effect ; 
Yew  trees.       and  so  is  Crowhurst  v.  the  Amersham  Burial  Board  (/),  where 
the  plaintiff's  horse  had  been  poisoned  by  eating  of  a  yew  tree 
which  the  defendants  had  planted  so  near  their  boundary  that  it 
projected  into  the  adjoining  meadow  of  the  plaintiff.  A  nice  ques- 
The  game  of  tion  of  law  is  likely  some  day  to  arise  as  to  the  liability  of  a 
cricket.  cricket  club  for  damage  done  to  person  or  property  by  the  bats- 

man hitting  out  of  the  field.  Probably,  on  the  authority  of 
these  cases,  they  would  be  held  responsible  ;  but  the  striker  of 
the  ball,  being  clearly  a  trespasser,  should  also  be  joined  as  a 
defendant. 
Another  vew  ^ut  *n  Wilson  v.  Newberry  (g)  it  was  held  that  a  man  is  not 
tree  case.  liable  to  an  action  merely  because,  by  some  unexplained  means, 

the  leaves  from  a  yew  tree  growing  on   his  land  get  on  to  his 
neighbour's  land,  and  are  there  eaten  by,  and  poison,  his  cattle. 
Timers  as  It  has  long  been  a  settled  legal  principle  that  a  person  who 

pets.  keeps  a  savage  animal,  such  as  a  tiger  or  a  lion,  does  so  at  his 

peril.     If  the  animal  escapes  and  hurts  anyone,  it  is  not  neces- 
sary for  the  party  injured  to  show  that  the  owner  knew  the  ani- 
mal to  be  specially  dangerous.     In  May  v.  Burdett  (A),  which 
The   monkey  was  the  case  of  a  monkey  biting  a  lady,  Lord  Denman,  C.J.  said, 
case.  "  Whoever  keeps  an  animal  accustomed  to  attack  and  bite  man- 

kind, with  knowledge  that  it  is  so  accustomed,  is  prima  facie  lia- 
ble in  an  action  on  the  case  at  the  suit  of  any  person  attacked 
and  injured  by  the  animal,  without  any  averment  of  negligence 
or  default  in  the  securing  or  taking  care  of  it.  The  gist  of  the 
action  is  the  keeping  the  animal  after  knowledge  of  its  mischiev- 
ous propensities." 

rj0(TS  In  the  case  of  an  action  for  a  dog  bite,  the  plaintiff  must  prove 

Proof  of  the  what  is  called  "the  scienter,"  that  is,  that  the  defendant  knew 
scienter.  the  dog  to  be  specially  dangerous.     The  knowledge  of  the  ser- 

vant having  charge  of  the  dog  is  the  knowledge  of  the  master  (/) ; 
and  a  complaint  to  the  owner's  wife  (k)  or  barmaid  (I)  on  the 
premises,  to  be  communicated  to  the  owner,  may  be  evidence  of 
knowledge.  It  is  not  necessary  to  prove  that  the  dog  has  actually 
bitten  anyone  before  (wi);  but  the  plaintiff  must  go  further  than 

(e)  3  C.  P.  D.  254.  (k)  Gladman  v.    Johnson,    36 

(n  4  Ex.  D.  5.  L.  J.,  C.  P.  153. 

(g)  L.  R.  7  Q.  B.  31.  (7)  Appleby  v  Percy,  L.  R.  9 

(A)  9  Q.  B.  110.  C.  P.  647. 

(i)  Baldwin  v.  Casella,  L.  R.          (hi)  Worth  v.  Gilling,   L.  R. 

7  Ex.  325.  2  C.  P.  685. 


SIC  UTERE  TUO  UT  ALIENUM  NON  L.EDAS.  257 

merely  to  show  that  it  was  usually  kept  tied  up  (n)  on  account 
of  its  supposed  ferocity.  An.offer  of  compensation  is  no  evidence 
of  the  sciente'r  (o). 

There  is  authority  for  the  proposition  that  a  man  is  entitled  to  Ferocious 

keep  a  ferocious  dog  for  the  protection  of  his  premises,  and    to  ('''^s  1<)r  Pro~ 

turn  it  loose  at  night  (p).     But  in  these  (lavs  of  law  and  order  a  ,l'(',1".n  '*' 
°  ,  premises, 

defendant  would  have  to  make  out  a  pretty  clear  case  of  such  a 

strong  precaution  being  really  necessary  to  his  safety.  * 

By  28  &  29  Vict.  c.  GO,  s.  1,  it  is  enacted  that  "the  owner  of  9°8  aoi  en" 

every  dog  shall  be  liable  in  damages  for  injury  done  to  any  cat-    '    e    even   ° 
°  o  j     j  j  onc.  worry. 

tie  or  sheep  by  his  dog ;  and  it  shall  not  be  necessary  for  the  party 
seeking  such  damages  to  show  a  previous  mischievous  propensity 
in  such  dog,  or  the  owner's  knowledge  of  such  previous  propen- 
sity, or  that  the  injury  was  attributable  to  neglect  on  the  part  of 
such  owner."     Horses  are  "  cattle  "  within  the  section  (q). 

Generally,  no  action  will  lie  against  the  owner  of  a  dog  which  Read  v. 
has  invaded  my  garden  and  spoilt  my  crops  ;  but  in  Read  v.  Ed-  Edwards, 
wards  (r)  it  was  held  that  an  action  lay  against  the  owner  of  a 
dog,  who,  knowing  the  animal  to  have  a  propensity  for  chasing  and 
destroying  game,  permitted  it  to  be  at  large,  the  cansequence 
of  which  was  that  the  dog  entered  the  plaintiff's  wood,  and  chased 
and  destroyed  young  pheasants  which  were  being  reared  there 
under  domestic  hens. 

A  man  is  responsible  for  the  trespasses  of  his  cattle  and  other  Responsi- 

animals  in  which  the  law  gives  him  a  valuable  property.     A  few  bility  ol 

years  ago,  a  horse  and  mare  in  adjoining  fields  had  a  little  neigh-  ?N%  n<  r  ,. 

;  '  .    .  ,  .  trespasses  ol 

hourly  difference  of  opinion  about  some  matter  of  equine  inter-  cattle 

est,  and  finally  the  horse,  with  a  sad  lack  of  gallantry,  Jacked  the  jg\]\3  v  Loft- 
mare  through  the  fence.  It  was  held  that  the  owner  of  the  horse,  us  Iron  Co. 
quite  apart  from  auy  question  of  negligence,  was  liable  for  the 
injury  so  done  to  the  mare  (s).  But  the  defendant  might  some- 
times get  on  the  right  side  of  an  action  of  this  kind  by  showing 
that  it  was  all  through  the  plaintiff's  not  fencing  properly,  as  he 
was  bound  by  prescription  or  otherwise  to  do  {t). 

See  the  recent  case  of  Farrer  v.  Nelson  (u)  with  regard  to  actions 
for  overstocking  land  with  game  by  which  injury  is  done  to  crops. 

Nichols  v.  Marsland  engrafts  on  the  rule  of  Fletcher  v.  Rylands  Vis  major 
the  qualification  that,  although  a  man  brings  on  to  his  laud  what 
will  do  damage  if  it  escapes,  still  he  is  not  responsible  if  the  es- 

(«)  Beck  v.   Dyson,  4  Camp.         (s)  Ellis  v.    Loftus  Iron  Co., 

198.  L.  R.  10  C.  P.  10.  but  see  Cox 

(o)  Beck  v.  Dvson,  supra.  v.  Burbridge,  13  C.  B.  N.  S.  .430. 

(p)  Brock  v.  Copeland,  1  Esp.         (0  See  Lee  v.  Riley.  18  C.  B., 

203,  Sarch  v.  Blackburn,  4  C.  P.  N.  S.  7-22:  Rooth  v.   Wilson,   1 

300,  and  Curtis  r.  Mills,  5  C.  &  B.  &  Aid.  59;   Powell  v.  Salis- 

P.  489.  bury,  2  V.  &  .1.  391  :  and  Tillett 

(a)  Wright  v.   Penson,  L.   R.  v.  Ward,  10  Q.  B.  P.  17. 
4  Q.  B.  582.  (u)  15  Q.  B.  D.  258. 

(/•)  17  C.  B.,  N.  S.,  245. 


258  SIC    UTERE    TUO    UT    ALIENUM    NON   LJEVAS. 

cape  is  due  to  causes  beyond  his  own  control,  and  amounting  to 
vis  major  (.r)  ;  and  in  the  later  case  of  Box  v.  Jubb  (y),  the  same 
\cl  of  third    court  held  that  for  the  wrongful  act  of  a  third  party,  which  set  the 
party.  damage  in  motion,  the  proprietor  was  no  more  responsible  than 

for  vis  major.     Moreover,  a  man  who  brings  water  on  to  his  land 
in  the  ordinary,  reasonable,  and  proper  mode  of  enjoying  his  land,  is 
only  liable  for  an  escape  which  is  attributable  to  negligence. 
Floss  v.*  Thus  in  Ross  v.   Fedden  (2),  it  was  held  that  the  occupier  of  an 

I  edden.  upper  floor,  who  had  not  been  in  any  way  negligent,  was  not  lia- 

ble to  the  occupier  of  a  lower  for  the  leakage  of  water  from  a 
water-closet  of  which  he  had  the  exclusive  use. 
Dixon  v.  In  the  recent  case  of'  Dixon  v.    The   Metropolitan    Board    of 

Metropolitan  Works  (a),  the  action  was  by  a  coal-merchant  to  recover  damages 
wfc  °  ^or  inJury  to  a  ljarge»  coals,  &c,  belonging  to  him,  caused  by  the 

defendant's  negligence.  On  the  29th  of  August,  1879.  there  was 
an  exceptionally  heavy  rainfall,  and  the  defendants  had  opened 
the  water-gates  of  one  of  their  sewers  to  prevent  a  large  district 
from  being  flooded.  There  was,  of  course,  a  great  rush  of  water, 
and  the  coal-merchant's  belongings  were  swept  away  before  it. 
It  was  held  that,  as  the  injury  was  caused  by  the  opening  of  the 
water-gates,  and  not  by  the  act  of  God,  the  defendants  were 
prima  facie  liable  for  the  damage  done,  within  the  principle  of 
Fletcher  v.  Rylands,  but  that,  as  they  were  a  public  body  acting 
in  the  discharge  of  a  public  duty,  and  as  that  which  happened 
was  only  the  inevitable  result  of  what  Parliament  had  authorized 
them  to  do,  they  were  not  liable. 
Smith  i'  As  to  the  liability  of  neighbouring  mine-owners,  it  was  held 

Kenrick.  in   Smith  v.    Kenrick  (6)  that  the  owner  of  a  colliery  lying  on  a 

higher  level  than  another  was  not  responsible  for  damage  done 
to  the  latter  by  its  being  flooded  through  the  usual  and  proper 
taking  of  coal  from  the  former.  But  a  man  cannot  work  a  mine 
which  can  only  be  worked  by  letting  in  a  river  and  flooding  a 
neighbour's  mine  (c)  ;  and  where  a  mine-owner  diverts  the  course 
of  a  stream  he  must  take  care  that  the  new  course  provided  for 
it  shall  be  sufficient  to  prevent  mischief  from  an  overflow  (d). 
Colonel  Tom-  Smith  v.  Kenrick  was  discussed  and  distinguished  in  the  re- 
line  s  case.  cent  case  oi  the  Attorney-General  v.  Tomline  (e),  where  it  was 
held  that  an  action  would  lie  by  the  Attorney-General,  at  the  re- 
lation of  the  owner  of  the  land  within,  to  restrain  the  owner  of 
the  foreshore  from  removing  the  shingle  in  such  a  manner  as  to 
endanger  the  land  within  by  exposing  it  to  inroads  of  the  sea. 

(x)  See  also  Thomas  v.  Birm.         (b)  7  C.  B.  565. 
Canal  Co.,  43  L.  T.  435.  (c)  Crompton  v.   Lea,   L.    R. 

(y)  4  Ex.  D.  76  ;  and  see  Car-  19  Eq.  115. 
stairs  v.  Taylor,  L.  R.  6  Ex.  217.  (d)  Fletcher  v.  Smith,  2  App. 

(2)  L.  R   7  Q.  B.  661.  Ca.  781  ;  and  see  Baird  v.  Wil- 

(a)  7  Q.    B.   D.   418;  but  see  liamson,  15  C.  B.,  N.  S.,  376. 
Powell  v.  Fall,  5  Q.  B.  D.   597.         (e)  49  L.  J.  Ch.  377. 


PROXIMATE    CAUSE.  259 

See  also  the  recent  case  of  AYhallcy  V.   Lane.  &  Yorks.   Ry.  Whalley  s 
Co.   (/),  where  the  defendants  were  held  liable  for  having,  in  case, 
self-protection,  transferred  a  quantity  of  water,  the  result  of  an 
unprecedented  rainfall,  to  adjoining  lauds  by  cutting  trenches  in 
their  embankment. 


Proximate  Cause. 


SCOTT   r.    SHEPHERD.  [106.] 

[2  W.  Bl.  892  (1773).] 

Mr.  Shepherd,  of  Milbourne  Port,  determined  to  cele- 
brate the  happy  deliverance  of  that  august  and  wise 
monarch  James  I.  in  the  orthodox  fashion;  and,  with 
that  intention,  he  some  days  before  the  5th  laid  in  a 
plentiful  pyrotechnic  supply.  Being  not  only  of  a 
pious  and  patriotic  spirit,  but  also  a  man  not  destitute 
of  humour,  he  threw  a  lighted  squib  into  the  market 
house  at  a  time  when  it  was  crowded  with  those  that 
bought  and  sold.  The  fiery  missile  came  down  on  the 
shed  of  a .  vendor  of  ginger-bread,  who,  to  protect 
himself,  caught  it  dexterously  and  threw  it  way  from 
him.  It  then  fell  on  the  shed  of  another  ginger-bread 
seller,  who  passed  it  on  in  precisely  the  same  way  ; 
till  at  last  it  burst  in  the  plaintiff's  face  and  put  his  eye 
out. 

Scott  brought  an  action  against  the  original  thrower 
of  the  squib,  who  objected  that  he  was  not  responsible 
for  what  had  happend,  when  the  squib  had  passed 
through  so  many  hands;  but,  though  he  persuaded  the 
learned  Mr.  Justice  Blackstone  to  agree  with  him,  the 
majority  of  the  court  decided  that  he  must  be  presumed 
to  have  contemplated  all  the  consequences  of  his  wrong- 
ful act  and  was  answerable  for  them. 

(/)  13  Q.  B.  D.  131. 


260  PROXIMATE   CAUSE. 

[107,]  SHARP  v.  POWELL. 

[L.  R.  7C.  ]\  253  (1842).] 

In  defiance  of  an  Act  of  Parliament,  a  corn  mer- 
chant's servant  washed  one  of  his  master's  vans  in  the 
street  of  a  town.  In  warm  weather  no  harm  would 
have  come  of  this  improper  proceeding;  the  water  would 
have  found  its  way  down  a  gutter  and  through  a  grat- 
ing. But  it  happened  to  be  very  frosty,  and  (though 
the  law-breaking  servant  did  not  know  it)  the  grat- 
ing was  frozen  over.  The  consequence  was  that  the 
water,  finding  no  escape,  flowed  about  and  formed  a 
great  sheet  of  ice,  over  whiqh  the  plaintiff's  horse 
slipped  and  got  hurt. 

The  owner  of  the  injured  horse  brought  an  action 
against  the  corn  merchant,  but  it  was  held  that,  how- 
ever improper  it  might  be  to  wash  a  van  in  the  public 
street,- this  was  not  the  proximate  cause  of  the  injury; 
for  the  servant  could  not  be  expected  to  foresee  that  the 
consequences  of  his  act  would  be  that  the  water  would 
freeze  over  so  large  a  portion  of  the  street  as  to  occa- 
,         sion  a  dangerous  nuisance. 

Probably  no  case,  except  perhaps  Coggs  v.   Bernard,  is  better 
known  to  the  superficial  student  than  the  "squib  case."     It  can- 
not be  said,  however,  that  its  importance  is  equal  to  its  popular- 
ity.    In  days  gone  by  it  served  to  illustrate  the  distinction  be- 
tween the  action  of  trespass  and  the  action  on  the  case,   but  it  is 
now  chiefly  worth  remembering  as  an  authority  on  questions  of 
consequential  damage. 
Ordinary  and      The  rule  is  that  damage  to  be  actionable  must  be  the  ordinary 
probable  con-  and  probable  consequence  of  the  act  complained  of;  in  other 
sequence.         words,  the  act  must  be  the  proximate  cause  of  the  damage.     If  a 
candidate  for  parliamentary  honours  makes  a  stump  oration  in- 
veighing at  his  opponents  generally,  and  waves  his  hat  into  the 
bargain,  that  is  not  the  proximate  cause  of  one  of  those  oppo- 
nents getting  his  windows  or  his  head  broken  (g).     Generally, 
however,  a  man  must  be  taken  to  contemplate  all  the  consequences 
Sneesbv's         °^  *"s  acts>  an(l  *s  responsible  for  them.     A  railway  company 
case,  negligently  sent  some  empty  trucks  down  an  incline  into  a  siding. 

(g)  Peacock  r.  Young,  18  W.  E.  Q.  B.  134. 


PROXIMATE    CAUSE.  261 

The  consequence  was  that  a  herd  of  cattle  being  driven  along  an 
occupation  road  got  frightened,  ran  away,  and  after  breaking 
down  a  fence  or  two  succeeded  in  getting  killed  on  quite  another 
part  of  the  company's  line.  The  company  were  held  responsible 
to  the  owner  of  the  cattle  (A).  In  a  very  recent  case  (/)  the  fol-  Clark  v. 
lowing  facts  appeared.  The  occupier  of  a  Held  used  for  athletic  Chambers. 
sports  put  a  barrier  with  iron  spikes  across  the  adjoining  road, 
in  order  that  the  British  public  might  not  see  the  sports  without 
paying.  Somebody  removed  this  barrier,  and  and  pnt  it  in  a 
dangerous  position  across  the  footpath.  The  plaintiff  was  law- 
fully passing  along  this  footpath  at  night,  when  his  eye  came  into 
contact  with  one  of  the  spikes.  It  was  held  that  the  occupier  of 
the  field,  who  had  taken  liberties  with  the  road  which  he  had  no 
business  to  take,  was  liable  notwithstanding  the  intervention  of 
a  third  party.  To  take  a  still  more  recent  case  (k),  the  proprie-  Harris  v. 
tor  of  a  van  and  ploughing  apparatus  left  it  by  the  grassy  side  Mobbs. 
of  a  road  to  remain  there  all  night.  While  it  was  there  a  farmer 
came  by  driving  a  mare,  a  confirmed  kicker,  though  not  so  to  his 
knowledge.  The  brute  shied  at  the  van,  ran  away,  and  kicked 
the  farmer  to  death.  In  an  action  under  Lord  Campbell's  Act, 
it  was  held  that  the  van-proprietor  was  liable  (k).  "  Though  the 
immediate  cause  of  the  accident,"  said  the  court,  i:  was  the  kick- 
ing of  the  mare,  still  the  unauthorised  and  dangerous  appearance 
of  the  van  and  plough  on  the  side  of  the  highway  was  within  the 
meaning  of  the  law  the  proximate  cause  of  the  accident." 

The  principle  of  Scott  v.  Shepherd  has  been  applied  in  a  curious  some  Ameri- 
American  case,  where  the  defendant  (with  a  certain  amount  of  can  cases, 
provocation)  had  seized  a  pickaxe  and  chased  a  little  black  boy 
through  the  streets  of  a  town.  The  boy,  in  terror  for  his  life, 
bolted  into  the  plaintiff's  store,  and  in  his  hurry  knocked  over  a 
cask  of  wine.  It  was  held  that  the  defendant  must  pay  for  the 
good  liquor  lost  (/).  "There  is  nearly  as  much  reason,"  said  the 
court,  "for  holding  him  liable  for  driving  the  boy  against  the 
wine  cask,  and  thus  destroying  the  plaintiff's  property,  as  there 
would  have  been  if  he  had  produced  the  same  result  by  throw- 
ing the  boy  upon  the  cask,  in  which  case  his  liability  could  not 
have  been  questioned."  So  in  the  American  leading  case  of 
Fent  v.  The  Toledo  Railway  Company,  59  111.  349,  it  was  held 
that  a  railway  company  might  be  responsible  to  any  extent  to 
which  a  fire  wrongfully  caused  by  a  spark  from  one  of  their  en- 
gines might  spread.  "  If  loss  has  been  caused  by  the  act,"  said 
Lawrence,  C.J.,  "and  it  was  under  the  circumstances  a  natural 

(A)  Sneesby  v.   Lancashire  &  (k)  Harris  v.  Mobbs,  3  Ex.  D. 

Yorkshire  Ry.  Co.,  L.  R.   9  Q.  268,  and  see  Wilkins  v.  Day,  12 

B.  263.  Q.  B.  D.  110. 

(/)  Clark  v.  Chambers,   3  Q.  (/)  Vanderburgh  v.   Truax,  4 

B.  D.  327.  Den.  N.  Y.  464. 


262 


PROXIMATE    CAUSE. 


The  Salva- 
tion Army. 


Responsi- 
bility for 
collecting 
crowds. 


consequence  which  any  reasonable  person  could  have  anticipated, 
then  the  act  is  a  proximate  cause  whether  the  house  burned  was 
the  first  or  the  tenth, — the  latter  being  so  situated  that  its  de- 
struction is  a  consequence  reasonably  to  be  anticipated  from  set- 
ting the  first  on  fire  "  (m).  But  in  the  recent  American  case  of 
Scheffer  t<.  Washington,  &c,  Railway  Co.  (n)  it  was  held  that 
where  an  injury  to  a  passenger  by  the  negligence  of  the  railway 
company  carrying  him  caused  insanity,  by  reason  of  which  he 
committed  suicide,  the  injury  was  not  the  proximate  cause  of 
the  death,  and  the  company  were  not  liable  for  such  death. 

The  recent  case  of  Beatty  v.  Gillbanks  (o)  may  be  mentioned 
here  as  bearing  indirectly  on  proximate  cause.  At  Weston-super- 
Mare  some  eccentric  religionists,  calling  themselves  a  Salvation 
Army,  assembled  and  marched  in  procession  through  the  streets 
of  the  town.  Though  their  intention  was  lawful  and  innocent 
enough — that  of  singing  hymns,  and  otherwise  enjoying  them- 
selves in  an  emotional  manner — they  knew  they  were  hated  by 
the  roughs,  and  that  an  attempt  would  be  made  to  disturb  the 
arrangements,  with  the  probable  result  of  a  breach  of  the  peace. 
In  spite  of  this  knowledge,  it  was  held  that  they  could  npt  be 
rightly  convicted  of  an  unlawful  assembly.  "  As  far  as  these  ap- 
pellants are  concerned,"  said  Field,  J.,  "there  was  nothing  in 
their  conduct  when  they  were  assembled  together  which  was 
either  tumultuous  or  against  the  peace.  But  it  is  said  that  the 
conduct  pursued  by  them  on  this  occasion  was  such  as  on  several 
previous  occasions  had  produced  riots  and  disturbance  of  the 
peace  and  terror  to  the  inhabitants,  and  that  the  appellants  know- 
ing when  they  assembled  together  that  such  consequences  would 
again  arise  are  liable  to  this  charge.  Now,  I  entirely  concede 
that  every  one  must  be  taken  to  intend  the  natural  consequences  of  Jus 
own  acts  and  it  is  clear  to  me  that  if  this  disturbance  of  the  peace 
was  the  natural  consequence  of  acts  of  the  appellants,  they  would 
be  liable,  and  the  justices  would  have  been  right  in  binding  them 
over.  But  the  evidence  set  forth  in  the  case  does  not  support 
this  contention  ;  on  the  contrary,  it  shows  that  the  disturbances 
were  caused  by  other  people  antagonistic  to  the  appellants,  and 
that  no  acts  of  violence  were  committed  by  them." 

But  "  it  is  an  old  principle  of  law,  that,  if  a  person  collects  to- 
gether a  crowd  of  people  to  the  annoyance  of  his  neighbours,  that 
is  a  nuisance  for  which  he  is  answerable.  Therefore,  where  the 
defendant  was  in  the  habit  of  inviting  persons  into  his  own 
grounds  to  shoot  pigeons,  and  the  effect  of  that  was  that  idle 
persons  collected  near  the  spot,  trod  down  the  grass  of  the  neigh- 


{m)  See  Smith  v.  L.  &  S.  W. 
Ry.  Co.,  L.  R.  6  C.  P.  14. 
(n)  Law  Times,  Aug.    26th, 


1882. 

(o)  9  Q.  B.  D.  308. 


NEGLIGENCE.  263 

bouring  meadows,  destroyed  the  fenees,  and  created  alarm  and 
disturbance  amongst  the  women  and  children  in  the  adjoining 
thoroughiares,  it  was  held  that  the  defendant  was  guilty  of  a  nui- 
sance Q)).  So,  where  the  defendant  descended  in  a  balloon  into 
the  plaintiff's  garden,  and  a  number  of  persons  rushed  into  the 
garden  to  render  help  and  gratify  their  curiosity,  and  destroyed 
the  plaintiff's  hedges  and  crops,  it  was  held  that  the  defendant 
who  had  set  the  balloon  in  motion  and  caused  the  mischief  was 
responsible  for  the  injury"  (q). 


Negligence. 

READHEAD  v.  MIDLAND  RAILWAY  CO.  [108.] 

[L.  R.  4  Q.  B.  349  (I860).] 

Mr.  Readhead  was  a  second-class  passenger  from  Not- 
tingham to  South  Shields,  and  on  the  journey  the  car- 
riage in  which  he  was  travelling  left  the  metals  and  was 
upset.  This  mishap  was  occasioned  by  the  breaking  of 
the  tyre  of  one  of  the  wheels  of  the  carriage,  owing  to  a 
latent  defect  in  the  tyre  which  was  not  attributable  to 
any  fault  on  the  part  of  the  manufacturer,  and  could 
not  be  detected  previously  to  the  breaking.  This  being 
so,  it  was  held  that,  though  Mr.  Readhead  might  have 
sustained  very  severe  injuries,  the  company  were  under 
no  obligation  to  make  him  compensation.  It  may  be 
mentioned,  however,  that  in  the  court  below  Mr.  Justice 
Blackburn  had  delivered  a  strong  dissenting  judgment 
against  the  railway  company. 

Carriers  of  passengers  are  not,  like  carriers  of  goo<h,  insurers;  Duty  of  car- 
and  accordingly,  before  one  of  their  victims  can  recover  damages,  rier  ol  pas- 
he  must  prove  a  breach  of  duty.     Their  duty  is — as  was  said  in  senSers- 

(p)  R.  r.  Moore,  3  B.  &  Ad.  (q)  Guille  v  Swan.  If)  Johns. 
188.  and  Walker  t.  Brewster,  L.  (U.  S.  R.)  381,  Add.  Torts.  (5th 
R.  5  Eq.  25  ed.)  p  109. 


264  NEGLIGENCE. 

the  leading  case — "  to  take  dw  care  [including  in  that  term  the  use 
of  skill  and  foresight)  to  carry  the  passenger  safely,  and  is  not  a  war- 
ranty that  (he  carriage  in  which  he  travels  shall  be  in  all  respects  Jit  for 
its  purpose. 

Tlyman  v.  ^n  tnc  recent  case  of  Hynian  v.  Nye  (r)  (where  the  plaintiff  had 

Nye.  liired  from  the  defendant,  a  jobmaster  for  a  drive  from  Brighton 

to  Shoreham  and  back,  a  carriage,  a  pair  of  horses,  and  a  driver, 
and  an  accident  had  occured),  it  was  held  that  the  duty  of  a 
jobmaster  who  lets  out  carriages,  &c,  is  to  supply  a  carriage  as 
fit  for  the  purpose  for  which  it  is  hired  as  care  and  skill  can  make 
it,  "and  if,  whilst  the  carriage  is  being  properly  used  for  such 
purpose,  it  breaks  down,  it  becomes  incumbent  on  the  person 
who  has  let  it  out  to  show  that  the  breakdown  was  in  the  proper 
sense  of  the  word  an  accident  not  preventable  by  any  care  or 
skill.  If  he  can  prove  this,  as  the  defendant  did  in  Christie  v. 
Griggs,  (2  Camp.  80),  and  as  the  railway  company  did  in  Read- 
head  v.  Midland  Railway  Company,  he  will  not  be  liable;  but  no 
proof  short  of  this  will  exonerate  him"  (s). 

Accident  not  ^n  an  action  for  personal  injuries  the  great  obstacle  to  the  plain- 
imputable.  tiff's  success  generally  is  to  prove  that  the  act  complained  of  was 
either  wilful  or  negligent.  The  defendant  cannot  be  made  re- 
sponsible for  a  mere  accident.  In  Holmes  v.  Mather  (t),  a  gen- 
tleman at  North  Shields  had  tried  some  horses  for  the  first  time 
in  double  harness.  The  horses  did  not  take  kindly  to  it,  and  the 
plaintiff  got  knocked  down.  "The  driver,"  said  Bramwell,  B., 
"is  absolutely  free  from  all  blame  in  the  matter;  not  only  does  he 
not  do  anything  wrong,  but  he  endeavours  to  do  what  is  best  to  be 
done  under  the  circumstances  The  misfortune  happens  through 
the  horses  being  so  startled  by  the  barking  of  a  dog. that  they  run 
away  with  the  groom  and  the  defendant  who  is  sitting  beside 
him.  Now,  if.the  plaintiff  under  such  circumstances  can  bring 
an  action.  I  really  cannot  see  why  she  could  not  bring  an  action 
because  a  splash  of  mud,  in  the  ordinary  course  of  driving,  was 
thrown  upon  her  dress,  or  got  into  her  eye  and  so  injured  it.  . 
For  the  convenience  of  mankind  in  carrying  on  the  affairs  of  life, 
people  as  they  go  along  roads  must  expect,  or  put  up  with  such  mis- 
chief as  reasonable  care  on  the  part  of  others  cannot  acoid."'  In 
•  another  well-known  case  (u),  a  coachman  drove  his  coach  against 
a  bank.  He  had  been  past  the  same  spot  only  twelve  hours,  be- 
fore but  in  the  interval  a  cottage  which  served  him  as  a  landmark 
had  been  pulled  down  and  carted  away.  It  was  held  that  this 
was  an  accident  and  for  which  no  one  could  be  made  responsible. 

(r)  6  Q.  B.  D.  685,  and  see  Gil-         (i)  L.  R.  10  Ex.  261. 
hert  r.  North  London  By.   Co.,         (u)  Crofts    v.    Waterhouse,    3 

1  C.  &  E.  31.  Bing.  319. 

(s)  Per  Lindley,  J. 


NEGLIGENCE.  265 

So,  in  the  recent  case  of  Manzoni  v.  Douglas  (x),  where  a  horse  ftfanzoni  v. 
drawing  a  brougham  in  a  London  street  had  suddenly  and  with-  Douglas. 
out  appearant  reason  bolted  and  knocked  the  plaintiff  down,  it 
was  held  that  an  action  could  not  be  maintained.  "To  hold," 
said  Lindley,  J.,  ''that  the  mere  fact  of  a  horse  bolting  is  per  se 
evidence  of  negligence  would  be  mere  reckless  guesswork. "  The 
American  case  of  Brown  v.  Kendall  (y),  also  illustrates  this 
point.  The  dogs  of  plaintiff  and  defendant  got  lighting,  and  the 
defendant,  in  trying  to  separate  them  with  a  long  stick,  unfor- 
tunately knocked  out  the  eye  of  the  plaintiff,  who  was  standing 
behind  him.  It  was  held  that  the  defendant  was  not  liable  for 
tins  mischief.  "If,''  said  Shaw,  C.  J.,  "in  the  prosecution  of  a 
lawful  act,  a  casualty,  purely  accidental,  arises,  no  action  can 
be  supported  for  an  injury  arising  therefrom." 

In  an  action  for  personal  injuries  by  negligence,  it  is  the  pro-  Respective 
vince  of  the  Judge  to  say  whether  there  is  evidence  from  which  provinces  Oi 
negligence  may  be  reasonably  inferred,  and  of  the  jury  (if  the  ■  .    " 
evidence  is  left  to  them)  to  say  whether  it  ought  to  be  inferred  (z). 

Sometimes,  however,  res  ipsa  loquitur ;  the  mere  happening  of  j>cs  jpS(l 
a  disaster  may  be  sufficient  to  raise  a  presumption  of  negligence,  loquitur. 
which  the  defendant  must  rebut  if  he  can.  This  is  so,  for  in- 
stance, where  the  thing  that  caused  the  mischief  was  so  exclu- 
sively under  the  defendant's  control,  that  it  is  hardly  credible 
that  any  harm  could  have  come  from  it  without  his  default.  A 
gentleman  was  once  guilessly  Avalking  down  a  Liverpool  street 
when  suddenly  a  barrel  of  flour  came  down  on  his  head  from  the 
upper  window  of  a  flour  dealer's  shop,  and  the  subsequent  pro- 
ceedings for  some  time  to  come  did  not  greatly  interest  him.  In 
an  action  against  the  flour  dealer,  it  was  held  that  the  mere  un- 
explained fact  of  the  accident  happening  at  ail  was  evidence  of 
negligence  (a).  The  same  principle  of  law  was  laid  down  in  a 
case  where  a  custom-house  officer,  lawfully  iu  some  docks,  was 
knocked  down  by  a  bag  of  sugar  lowered  by  a  crane  overhead  (6); 
and  in  a  third  case,  where  a  brick  fell  from  a  railway  bridge  on  a 
person  walking  peacebly  along  the  queen's  highway  below  (c). 

A  railway  passenger,  it  has  been  held,   is  entitled  to  assume  T)oor  flying 
that  the  door  is  properly  shut,  and  to  act  accordingly  (d).     And  open, 
the  moral  of  another  case  (e)  seems  to  be  that  if  it  happens  that 

(.r)  6  Q.  B.  D.   145  ;  and  see  (c)  Kearney  v.  L.  B.  tt  S.  C. 

Hammack  v.  White,  11  C.  B.  N.  Ry.  Co.,  L.  R.  6  Q.  B.  759.  See 

S.  588.  also  Skinner   v.   L.  B.  &  S.  C. 

0/)  6  Cush.  292.  Ry.  Co.,  5  Ex.  787  ;  Carpue  v. 

(z)  Metr.  Ry.  Co.  v.  Jackson,  L.  B.  &  S.  C.  Ry.  Co.,  5  Q.  B. 

3  App.  Ca.  19:}  ;  and  see  Dub-  747  ;  and  Bird  v.  G.  N.  Rv.  Co., 

lin,  &c,  Rv.  Co.  v.  Slattery,  3  28  L  J.  Ex.  3. 

App.  Ca,  1155.  .  (d)  Gee  v.  Metr.  Ry.  Co.,  L. 

(«)  Bvrne  v.  Boadle,   2  H.  &  R.  8  Q.  B.  161. 

C  722.  (e)  Adams  v.  Lane.  &  Y.  Ry. 

(b)  Scott  v.  Lond.  Docks  Co.,  Co.,  L.  R.  4  C.  P.  739. 
3  H  &  C.  596. 


266 


NEGLIGENCE. 


Train  not 
alongside 

platform. 


Invitation  to 
alight. 


Statutory 
precaution 
disregarded. 
Voluntary 
precaution 
dropped. 
Ice  on  rail- 
way plat- 
form. 


Passenger 
carried  at 
own  risk. 


the  door  is  not  shut,  or  if  it  flies  open,  the  student  had  better 
not  make  any  effort  to  close  it,  but  get  to  the  other  side  of  the 
carriage,  and  let  it  bang  itself  to  splinters. 

A  good  many  actions  against  railway  companies  are  brought 
liv  persons  who  have  sustained  hurt  by  their  trains  overshooting 
the  platforms,  or  not  getting  properly  up  to  them.  The  mere 
fact  of  a  train's  doing  a  thing  of  this  kind  is  not  evidence  of. 
negligence  ;  but  in  such  a  case  it  becomes  the  duty  of  the  rail- 
way servants  to  take  immediate  steps  to  prevent  people  getting 
out  and  hurting  themselves.  The  singing  out  of  the  station  is 
not  necessarily  an  invitation  to  alight  ;  but  the  bringing  up  of 
the  train  to  a  final  standstill  at  a  station,  at  all  events  after  such 
a  time  has  elapsed  that  the  passengers  may  reasonably  infer  that 
they  are  expected  to  get  out,  is  an  invitation.  The  following 
cases'may  be  consulted  in  support  of  this  statement  of  the  law. — 
Cockle  v.  S.  E.  Ry.  Co.,  L.  R.  5  C.  P.  457  ;  Praeger  v.  Brist,  & 
Ex.  Ey.  Co.,  24  L.  T.  105  ;  Bridges  v.  North  London  Ry.  Co.,  L, 
R.  G  Q.  B.  377  ;  Robson  v.  N.  E.  Ry.  Co.,  L.  R.  10  Q.  B.  271  ; 
Siner  v.  G.  W.  Ry.  Co.,  L.  R.  3  Ex.  150  ;  Rose  v.  N.  E.  Ry  Co., 
2  Ex.  D.  248  ;  Lax  v,  Darlington,  5  Ex.  D.  28  ;  Weller  v.  h.'  B. 
&  S.  C.  Ry.  Co.,  L.  R.  9  C.  P.  126 ;  Hellawell  v.  L.  &  N.  W.  Ry. 
Co.,  26  L.  T.  557;  and  Thompson  v.  Belfast  Ry.  Co.,  Ir.  Rep.,  5 
C.  L.  517. 

The  omission  to  take  a  precaution  enjoined  by  statute  (e.  g.,  to 
keep  a  gate  at  a  level  crossing)  amounts  to  negligence  (/).  But 
the  omission  to  guard  against  extraordinary  accidents  is  not  negli- 
gence (g)  ;  nor  is  the  omission  of  a  merely  voluntary  precaution 
(A).  Each  case,  however,  depends  on  its  own  circumstances.  In 
Shepherd  v.  Midi.  Ry.  Co.  (i)  the  action  was  by  the  Bedford- 
shire attorney  who,  while  smoking  a  cigar  on  the  platform  of  the 
Ampthill  station,  and  waiting  for  his  train,  one  frosty  day  in 
1870,  "felt  his  legs  suddenly  go  from  under  him,  and  fell  heavily 
on  the  platform,  where  he  lay  until  assistance  was  procured  to 
enable  him  to  rise."  The  cause  of  this  accident  was  a  strip  of 
ice  ;  and  the  plaintiff  considered  he  was  entitled  to  damages  out 
of  the  railway  company.  In  this  view  he  was  confirmed  by  the 
judges.  "It  strikes  me,"  said  Martin,  B.,  "that  the  railway 
servants  ought  to  be  on  the  alert  during  such  weather  to  see  that 
there  is  no  ice  upon  the  platform,  and  to  remove.it,  or  render  it, 
harmless,  if  there." 

It  is  to  be  observed  that  a  passenger  may  enter  into  a  special 
contract  with  a  carrier  to  be  carried  at  his  own  risk  ;  and  in  that 


(/)See  Stapley  v.  L.  B.  &  S. 
C.  Ry.  Co.,  L.  R.  1  Ex.  21  ; 
"Wan less  v.  N.  E.  Ry.  Co.,  L.R. 
6  Q.  B.  481 ;  and  Wright  v.  G. 
N.  Ry.  Co.,  L.  R.  (Ir.)  8,  257. 

(g)    Blyth   v.    Birm.    Water- 


works Co.,  11  Ex.  781,  and 
Thomas  v.  Birm.  Canal  Co.,  43 
L.  T.  435. 

(7«)  Skelton  ».  L.  &  N.  W. 
Ry.  Co.,  L.  R.  2C.  P.  631 

(0  25  L.  T.,  N.  S.,  879. 


NEGLIGENCE.  207 

case  no  amount  of  negligence  would  found  an  action  (k).  Such  a 
condition,  exempts  a  railway  company  from  responsibility,  not 
only  during  the  journey  but  also  while  the  passenger  is  coming  to  or 
leaving  their  premises.  And  it  even  extends  to  protect  another 
railway  company  over  whose  line  the  company  making  the  special 
contract  have  running  powers  (/).  The  condition  is  visually  im- 
posed on  a  drover  in  charge  of  cattle  who  receives  a  free  pass(m). 

A  railway  company  are  required  by  the  G8th  section  of  the  Fences. 
Kail  ways  Clauses  Act,  1845  (w),  to  make  and  maintain  fences,  etc., 
for  the  accommodation  of  the  owners  and  occupiers  of  adjoining 
lands,  and  they  will  therefore  be  liable  to  those  owners  and  oc- 
cupiers for  losses  resulting  through  breach  of  this  statutory  duty  (o). 
But  if  cattle  stray  into  afield  adjoining  the  line,  and  thence  get 
on  to  the  line  and  are  killed,  the  company  will  not  be  responsi- 
ble {p). 

Market  owners  who  take  toll  from  persons  attending  the  mar-  The  cow  and 
ket  with  their  cattle  are  bound  to  keep  the  market  in  a  reason-  the  statue.    ' 
ably  safe  condition,  and  on  this  ground  the  maj-or,  aldermen  and 
burgesses  of  the  borough  of  Darlington  were  held  liable  for  the 
loss  of  a  cow  which  was  so  irreverent,  and,  as  it  turned  out,  so 
indiscreet  as  to  try  to  jump  over  a  spiked  fence  surrounding  the  ' 
statue  of  a  local  hero  (q).     So,  in  the  case  of  Francis  v.   Cock- 
rell  (r),  it  was  held  that  "  where  money  is  paid  by  spectators  at 
races  or  other  public  exhibitions  for  the  use  of  temporary  stands 
or  platforms,  there  is  an  implied  warranty  on  the  part  of  the  person 
receiving  the  money  that  due  care  has  been  used  in  the  construc- 
tion of  the  stand  by  those  whom  he  has  employed  as  independent 
contractors  to  do  the  work  as  well  as  by  himself." 

The  limitation  of  the  leading  case  as  to  latent  defects  does  not  Randall  v. 
apply  to  the  sale  of  a  chattel  where  there  is  an  implied  warranty.  Newson. 
In  Randall  v.  Newson  (s),  a  man  bought  of  a  coach  builder  a  pole 
for  his  carriage.  Though  the  coach-builder  was  guilty  of  no  neg- 
ligence in  the  matter,  the  pole  turned  out  defective  and  broke, 
frightening  and  injuring  the  horses.  .  It  was  held  that  the  coach- 
builder  was  liable. 

For  Lord  Campbell's  Act  (9  &  10  Vict.  c.  93),  see  p.  358. 

As  to  the  liability  of  a  person  for  the  consequences  of  his  neg-  Greenland  'v. 
ligence,  the  following  remark  of  Pollock,  C.B.,  in  the  well-known  Chaplin. 

(A;)  M'Cawley  v.  Furness  Ry.  (p)    Ricketts    v.    East,    &c, 

Co..  L.  R.  8  Q.  B.  57,  and  Gal-  Docks  and  Ry.   Co.,    12  C.   B. 

Ymv.  L.   &  N.  W.   Ry.  Co.,  L.  160;  and  see  Manchester,  &c, 

R.  10  Q.  B,  212.  Ry.  Co.  v.  Wallis,  14  C.  B.  213, 

(/)  Hall  v.  N.  E.  Ry.  Co.,  L.  and  Buxton  r.  N.   E.   Ry.   Co., 

R.  10  Q.  B.  437.  L.  R.  3  Q.  B.  549. 

(m)  See  Duffi>.  G.  N.  Ry.  Co.,  (?)  Lax  v.  Darlington,  5  Ex. 

4L.  R.  (Ir.)  178.  Div.  28. 

(n)  8  &  9  Vict.  c.  20.  (r)  L.  R.  5  Q.  B.  501. 

(o)   See  Corry  v.   G.  W.   Ry.  (s)  2  Q.  B.  D.  102. 
Co.,  7  Q.  B.  D.  322. 


208  NEGLIGENCE. 

contributory  negligence  case  of  Greenland  ?-.  Chaplin  (t)  (where 
an  anchor  fell  <>n  a  steam-boat  passenger)  may  be  quoted  : — "  I 
entertain  considerable  doubt  whether  a  person  who  has  been 
guilty  of  negligence  is  responsible  for  all  the  consequences  which 
may  under  any  circumstances  arise,  and  in  respect  of  mischief 
which  could  by  no  possibility  have  been  foreseen,  and  which  no 
reasonable  person  would  have  anticipated.  I  am  inclined  to  con- 
sider the  rule  of  law  to  be  this  :  that  a  person  is  expected  to  an- 
ticipate and  guard  against  all  reasonable  consequences,  but  that 
he  is  not  by  the  law  of  England  expected  to  anticipate  and  guard 
against  that  which  no  reasonable  man  would  expect  to  occur." 
See  also  Hurst  v.  Taylor  (tt)  with  regard  to  the  duty  of  fencing  a 
footpath  in  case  of  diversion. 


[109.] 


Contributor?/  Negligence. 

BTJTTERFIELD  v.  FORRESTER. 

[11  East,  60  (1809).] 

Mr.  Forrester,  a  citizen  of  Derby,  was  engaged  in  the 
enterprise  of  enlarging  and  improving  his  house.  This 
was  all  very  well;  but  in  carrying  out  his  repairs  he 
was  guilty  of  the  high-handed  and  unwarrantable  act 
of  putting  poles  across  the  king's  highway.  Just  about 
dusk,  one  August  evening,  while  things  were  in  this  im- 
proper state,  Mr.  Butterfield  was  riding  home.  With 
reckless  disregard  for  his  own  and  the  lieges'  safety,  he 
went  galloping  through  the  streets  "  as  fast  as  his  horse 
could  go;"  and  the  reader  will  scarcely  be  surprised  to 
hear  that  he  rode  plump  up  against  Mr.  Forrester's  ob- 
struction and  had  a  nasty  fall.  He  brought  this  action 
for  damages  ;  but  his  own  careless  riding  was  held  to 
be  as  complete  an  obstacle  to  his  success  as  Mr.  For- 
rester's pole  had  been  to  his  horse.  "  A  party,"  said 
Lord  Ellenborough,  C.J.,  "is  not  to  cast  himself  upon 
an  obstruction  which  has  been   made  by  the   fault   of 

(I)  5  Exch.  243  ;  and  see  Scott         (tt)  14  Q.  B.  D.  918. 
v.  Shepherd,  p.  259. 


CONTRIBUTORY    NEGLIGENCE.  269 

another  and  avail  himself  of  it  if  he  do  not  himself  use 
common  and  ordinary  caution  to  be  in  the  right  .    .    . 
.    .    .  One  person  being  in  fault  will  not  dispense  with 
another's  using  ordinary  care  for  himself. 


DA  VIES  v.  MANN.  [110.] 

[10  M.  &  \V.  546(1842).] 

The  owner  of  a  donkey  fettered  its  forefeet,  and  in  that 
helpless  condition  turned  it  into  a  narrow  lane.  The 
animal  had  not  disported  itself  there  very  long  when  a 
heavy  waggon  belonging  to  the  defendant  came  rumb- 
ling along.  It  was  going  a  great  deal  too  fast,  and 
was  not  being  properly  looked  after  by  its  driver  ;  the 
consequence  was  that  it  caught  the  poor  beast,  which 
could  not  get  out  of  the  way,  and  killed  it.  The  owner 
of  the  donkey  now  brought  an  action  against  the  owner 
of  the  waggon,  and,  in  spite  of  his  own  stupidity,  was 
allowed  to  recover,  on  the  ground  that  if  the  driver  of 
the  waggon  had  been  decently  careful  the  consequences 
of  the  plaintiff's  negligence  would  ham  been  averted. 
"Although,"  said  Parke,  B.,  "the  ass  may  have  been 
wrongfully  there,  still  the  defendant  was  bound  to  go 
along  the  road  at  such  a  pace  as  would  be  likely  to  pre- 
vent mischief.  Were  this  not  so  a  man  might  justify 
the  driving  over  goods  left  on  a  public  highway,  or 
even  over  a  man  lying  asleep  there,  or  the  purposely 
running  against  a  carriage  going  on  the  wrong  side  of 
the  road." 

The  doctrine  of  contributory  negligence  is  based  on  the  maxim  y0lenHnon  lit 
volenti  rum  fit  injuria.  The  man  who  is  the  author  of  his  own  injuria. 
wrong  merits  nobody's  sympathy  ;  he  does  not  come  into  court 
with  clean  hands.  "If,"  says  Domat,  "one  goes  across  a  public 
cricket-ground  whilst  they  are  playing,  there  and  the  ball  being 
struck  chances  to  hurt  him,  the  person  to  blame  is  not  the  inno- 
cent striker  of  the  ball,  but  he  who  imprudently  sought  out  the 
danger.1' 

19   COMMON   LAW. 


270 


CONTRIBUTORY    NEGLIGENCE. 


gence. 


Kadley's 
case. 


When  plain-  "But Da&iea  v.  Mann  engrafts  an  important  qualification  on  the 
tiff  may  re-  rule  that  the  negligence  of  the  plaintiff  himself  disentitles  him 
cover  in  spite  to  complain  of  the  defendant's  negligence.  If  the  defendant  by 
being  ordinarily  careful  would  have  averted  the  consequences  of  the 
plaintiff's  negligence  —  in  other  words,  if  the  regrettable  accident 
would  never  have  happened,  if  the  defendant  had  behaved  as  he 
ought  to  have  done — then  the  plaintiff  is  entitled  to  recover  in 
spite  of  his  negligence.  A  penny  steamer  negligently  ran  down 
ajbarge  on  the  Thames.  The  barge  had  not  ported,  and  no  look-out 
was  kept  on  board.  But  this  undoubted  negligence  of  the  barge  was 
held  not  such  as  to  prevent  her  owners  from  obtaining  compensa- 
tion from  the  steam-boat  people  (u).  In  the  river  Colne,  in 
Essex,  an  oyster  bed  was  so  placed  as  to  -be  a  public  nuisance, 
yet  its  proprietors  successfully  went  to  law  against  a  person  who 
ran  his  vessel  against  it  when  he  might  have  managed  better  (x). 
In  a  third  and  more  recent  case  some  colliery  proprietors  had  a 
siding  from  the  London  and  North  Western  Railway  Company's 
line,  and  over  the  siding  a  bridge  with  a  headway  of  eight  feet. 
The  London  and  North  Western  Railway  Company  negligently 
pushed  a  loaded  truck  eleven  feet  high  against  the  bridge  and 
broke  it  down.  The  jury  found  that  the  colliery  proprietors  as 
well  as  the  railway  company  had  been  negligent  in  the  matter, 
for  they  ought  to  have  foreseen  what  was  going  to  happen,  as 
the  loaded  truck  had  been  standing  about  some  time  ;  but  in 
spite  of  this  negligence,  they  were  held  entitled  to  recover  against 
the  railway  company  for  the  damage  done  to  the  bridge,  as  the 
defendants,  by  the  exercise  of  ordinary  care,  might  have  averted 
the  mischief  (y). 

The  donkey  case  qualification  may  be  put  as  qorrectly  and 
more  simply  by  saying  that  a  plaintiff  is  not  disentitled  by  his 
negligence  unless  such  negligence  was  the  proximate  cause  of  the 
damage. 

In  Davey  v.  L.  &.  S.  W.  Ry.  Co.  (yy),  which  was  a  level  crossing 
case,  the  defendants  had  been  to  a  certain  extent  negligent,  but 
the  plaintiff  was  held  to  have  been  properly  nonsuited,  because 
he  had  been  much  more  negligent,  and  it  was  his  negligence 
which  had  mainly  contributed  to  the  accident.  "Is  it  open," 
said  Bowen,  L.  J.,  "to  any  reasonable  mind  to  draw  the  infer- 
ence that  that  accident  was  caused  by  anything  except  the  gross 
negligence  of  the  man,  who  never  looked  at  a  train  which  was 
within  a  few  feet  of  him  ?" 

Contributory  negligence  is  no  defence  (probably)  in  criminal 
law  Jz). 

In  a  case  of  collisions  at  sea,  where  both  ships  are  to  blame,  the 


Davey 's  case. 


Collisions  at 
sea. 


(u)  Tuff  v.  Warman,  2  C.  B., 
N.  S.  573. 

(x)  Mayor  of  Colchester  v. 
Brook,  7  Q.  B.  339 

(y)  Radley  v.  L.  &N.  W.  Ry. 
Co.,  1  App.  Ca.  754. 


lyy)  12  Q.  B.  D.,  but  see  this 
cast-  severely  criticised  in  Brown 
v.  G.  W.  Ry.  Co.,  52  L.  T.  622. 

(z)  R.  v.  Swindall,  2  C.  &  K. 
20. 


DOCTRINE   OF   IDENTIFICATION,  271 

loss  is  equally  apportioned  between  them  (a).     But  in  the  case  of 

the  Bywell  Castle  (6),  it  was  held  that  when-  one  ship  has  by  The  Princess 

wrong  maneuvering  placed  another  ship  in  a  position  of  extreme  Alice  catas- 

danger,  that  other  ship  will  not  be  held  to  blame  if  she  has  done       *      " 

something  wrong,  and  has  not  been  manoeuvred  with  perfect  skill 

and  presence  of  mind.      '"You  have  no  right,','  said  James,  L.J.. 

"to  expect  men  to  be  something  more  than  ordinary  men.-' 

It  may  be  mentioned  here  that,  by  English  law,  the  owner  of  Compulsory 
a  ship  is  not  liable  for  the  negligence  of  a  pilot  whom  he  is  compel-  pilotage. 
led  to  employ  (c).  If,  however,  as  in  the  Suez  Canal,  the  effect  of 
taking  the  pilot  on  board  is  merely  to  constitute  him  adviser, 
while  the  control  of  the  navigation  of  the  ship  is  left  solely  with 
the  master,  the  ship-owner  will  not  succeed  in  sheltering  himself 
behind  the  compulsory  pilotage  (d). 

It  is  to  be  observed  that  the  defendant  is  not  excused  merely  Choice  of 
because  the  plaintiff,  knowing  of  a  danger  caused  by  the  defend-  dangers, 
ant,  voluntarily  incurs  an  alternative  danger,  e.g.,  jumps  out  of 
a  train  or  coach  to  escape  collision  (c).     Xor  is  he  excused  merely 
because  the  plaintiff  was  doing  something  illegal  (/). 

"'  The  law  with  regard  to  negligence."  said  Lopes,  J.,  in  Brown 
v.  G.  W.  Ey.  Co.  (zz),  "has  somehow  or  the  other  got  into  a 
lamentable  state  of  confusion." 


Doctrine  of  Identification. 


WAITE  "v.  NORTH  EASTERN  RAILWAY  CO.  [111.] 

[E.  B.  &E.  719  (1858i.] 

Mrs.  Park  and  her  little  grandson  of  five  years  old 
proposed  to  travel  by  train  from  Velvet  Hall  to  Tweed- 
mouth.  After  taking  the  ticket  and  a  half,  they  had  to 
get  to  the  opposite  platform  by  a  level  crossing;  and, 
whilst  they  were  attempting  the  passage,  a  goods  train 

(a)  The    Milan.    Lush.    388;  P.  D.  132.  and  see  the  Cacha- 
and  see  The  Margaret,  6  P.  D.  pool.  7  P.  D.  217. 
76,  The  City  of  Manchester,  5  (e)  Jones  v.  Boyce,  1  Stark. 
P.  D.  221,  and  The  Stoomvaart,  493;   and  see  Clavards  r.*  De- 
Ac.  v.  The  P.  &  O.,  7  H.  L.  795.  thick,  12  Q.  B.  439,  and  Adams 

(6)  4  P.  D.  219.  and  see  The  v.  L.  &  Y.  Ry.  Co.,  L.  E.   4  C. 

Famenoth,  7  P.  I).  207.  P.  742. 

(c)  17  &  18  Vict.   c.   104,  s.  (f)  Steele    v.    Buchart,    104 

388.  and  see  The  Clan  Gordon,  Mass.  59. 

7  P.  D.  190.  {zz)  52  L.  T.  622. 

{d)  The    Guy   Mannering,    7 


272  DOCTRINE    OF    IDENTIFICATION. 

came  up  unexpectedly  and  knocked  them  down.  Mrs. 
Park  was  killed  on  the  spot,  but  the  little  boy  survived 
to  go  to  law.  The  jury  found  that,  though  the  railway  ser- 
vants were  negligent  in  not  having  warned  the  old  wo- 
man against  the  danger  of  crossing  the  line  just  then, 
yet  the  woman  herself  in  not  having  kept  a  better  look- 
out was  guilty  of  such  negligence  as  would  have  disen- 
titled her  to  recover.  No  attempt  was  made  to  fix  the 
little  boy  himself  with  negligence.  It  was  resolved, 
however,  that  for  the  purposes  of  this  action  he  was  so 
identified  with  his  grandmother  that  her  negligence  was 
his,  and  that  his  action  must  fail. 

At  first  sight  it  may  seem  rather  hard  on  the  little  hoy  that, 
without  the  slightest  fault  on  his  part,  he  should  not  he  ahle  to 
avail  himself  of  the  company's  negligence;  hut  the  injustice  of  it 
will  appear  less  flagrant  "when  it  is  remembered  that  for  the  pur- 
poses of  crossing  the  line  he  had  entirely  surrendered  his  will  to 
his  grandmother's. 
Thorogood  r.  The  doctrine  of  identification,  which  the  leading  case  illustrates, 
Bryan.  has  been  applied  to  cases  of  the  collision  of  vehicles  (g).     You 

are  driving  your  dog-cart,  we  will  say,  at  your  usual  furious  and 
improper  speed  through  the  streets  of  a  town,  and  I  am  going 
out  to  dinner  in  a  hansom.  My  driver,  as  it  turns  out, — though, 
of  course,  I  did  not  know  it  when  I  employed  him, — is  drunk,  and 
through  the  joint  negligence  of  him  and  you,  a  collision  occurs, 
and  I  am  badly  hurt.  According  to  the  more  accepted  view,  I 
am  so  far  identified  with  my  drunken  driver  that  his  contributory 
negligence  is  mine,  and  I  shall  fail  in  my  action  against  you.  The 
reader,  however,  should  refer  to  the  case  of  Rigby  v.  Hewett  (h), 
where  two  omnibuses  were  racing,  and  the  plaintiff,  who  was  on 
the  outside  of  one  of  them,  was  thrown  off  and  injured.  It  was 
held  that  he  was  entitled  to  recover  damages  against  the  pro- 
prietors of  the  other  omnibus,  notwithstanding  the  furious  rate 
at  which  his  own  was  going. 

(g)  Thorogood  v.  Bryan,  8  C.     10  Ex.  47,  and  Child  v.  Hearn, 
B.  114;   and   see   Armstrong  v.     L.  R.  9  Ex.  476. 
Lane.  &  Yorks.  Ry.  Co.,  L.  R.         (A)  5  Ex.  240. 


CONTRIBUTORY  NEGLIGENCE  OF  CHILDREN.  273 


Contributory  Negligence  of  Children. 

LYNCH  r.  NURDIN.  [112.] 

[1  Q.  B.  29  (1841).] 

Mr.  Nurdin  was  an  egg-merchant,  and  used  to  send 
his  servant  round  Soho  with  a  cart  to  deliver  eggs  to  his 
customers.  One  day,  when  the  man  was  out  with  the 
cart  as  usual,  he  imprudently  left  it  for  half  an  hour  or 
so  standing  by  itself  on  Compton  Street,  drawn  up  by 
the  side  of  the  pavement.  While  he  was  away  some 
little  children  began  playing  about  the  cart,  climbing 
into  it,  and  having  all  kinds  of  games.  Amongst  them 
was  a  little  boy  named  Lynch,  aged  six  years.  He  was 
in  the  act  of  climbing  the  step  with  a  view  to  securing  a 
box  seat,  when  another  mischievious  little  boy  pulled  at 
the  horse's  bridle.  The  horse  moved  on,  and  the  little 
Lynch  was  thrown  to  the  ground  and  hurt. 

The  child  successfully  brought  an  action  for  damages 
against  the  egg-merchant,  it  being  considered  that  he 
was  not  guilty  of  contributory  negligence,  as  he  had  only 
obeyed  a  child's  natural  instinct  in  playing  with  the  cart. 

It  is  not  to  be  inferred  from  this  case  that  a  child  is  incapable  of  child  mav  be 
such  contributory  negligence  as  disentitles  him  from  recovering,  guilty  of  con- 
The  effect  of  this  and  other  cases  is  to  establish  the  rule  that  a  tributary 
child  is  to  be  judged  as  a  child,  so  that  we  are  not  to  expect  the  same      ^   ^ 
degree  of  care  from  him  as  from  such  as  are  of  riper  years  ;  but, 
on  the  other  hand,  he  must  not  get  into  mischief  to  the  extent  of 
doing  what  he  knows  to  be  naughty:  if  he  does,  he  is  guilty  of  dis- 
entitling contributory  negligence.     It  is  obvious,  then,  that  the 
law  does  not  consider  it  "getting  into  mischief"  to  the  required 
extent  for  a  child  of  six  to  play  with  carts  left  unattended  in  the 
street.     "The  decision  in  Lynch  v.   Nurdm,"  says  Parke  B,  in 
Lygo  r.  Newbold   (7),  "proceeded  wholly  upon  the  ground   that 
the  plaintiff  had  taken  as  much  care  as  could  be  expected  from  a 

(?)  9  Ex.  302,  and  see  the  American  case  of  Binge  v.  Gardiner, 
19  Conn.  507. 


274  CONTRIBUTORY  NEGLIGENCE  OF  CHILDREN. 

Lynch  v.  child  of  tender  years  ;   in  short  that  the  plaintiff  was  blameless, 

Nurdin  ex-      and  consequently  that  his  act  did  not  affect  the  question."     The 

plained  in        cases  0f  Abbott  v.  Macfie  (A-),  Mangan  v.  Atterton  (/),  and  Single- 

Lygo  v-  ton  v_  Eastern  Counties  Railway  Co.  (m),  may  advantageously  be. 

New  bold.  * 

referred  to  on  this  subject.     In  the  hrst  of  these  three  cases  a 

Pulling  child  of  seven  playing  in  a  Liverpool  street,  had  pulled  down  on 

down  flap  of   himself  the  covering  of  a  cellar  which  the  defendant  had  left 
cellar,  leaning  against  a  wall.     It  was  held  that  he  could  not  recover. 

In  Mangan  v.  Atterton  a  Sheffield  whitesmith  left  a  machine  for 
crushing  oil-cake  standing  about  in  the  street,  without  fastening 
up  the  handle  or  taking  any  other  precaution.     Forth  there  came 
bounding  from  the  school  just  then  the  plaintiff,  a  little  boy  of 
Playing  with  f°ur,  his  brother,  aged  seven,  and  some  other  boys.     They  in- 
crushing  oil-  stantly  collected  round  the  Sheffield  gentleman's  machine  ;  one  of 
cake  them  turned  the  handle  ;  and  then,  by  the  direction  of  his  brother, 

machine.  the  plaintiff  put  his  fingers  in  the  cogs.    The  result  of  this  scientific 

experiment  was  an  action  against  the  owner  of  the  machine.  But 
judgment  was  given  for  the  defendant,  on  the  double  ground  that 
he  had  not  been  negligent,  and  that  the  little  boy  had  been  (n). 
In  the  third  case  a  little  girl  of  three  got  trespassing  on  a  railway. 
Singleton's  She  Avas  sitting  on  the  parapet  of  a  small  wooden  bridge  when  a 
case.  a  train  came  up  and  cut  off  one  or  two  of  her  legs.     The  driver 

had  seen  the  child,  but  made  no  attempt  to  stop  the  engine,  con- 
tenting himself  with  whistling.  It  was  held  that  the  child  could 
not  recover  damages  against  the  company, — rather,  however,  be- 
cause they  had  not  been  negligent  at  all,  than  because  the  plain- 
tiff had  been  guilty  of  such  contributory  negligence  as  prevented 
her  from  availing  herself  of  the  defendant's  negligence. 

Cortributorv  I"  tne  American  leading  case  of  Hartfield  v.  Roper,  21  Wend, 
negligence  615,  the  defendant,  driving  a  sleigh  without  bells,  had  negligently 
of  parents.  mn  down  a  child  of  two  playing  about  in  a  street  by  itself.  In  an 
action  by  the  child  it  was  held  that  the  negligence  of  its  parents  in 
allowing  it  to  wander  unattended  in  a  public  road  was  an  answer. 
But  the  rule  which  visits  the  negligence  of  the  fathers  on  the 
children  in  this  way  is  denied  in  some  of  the  States  of  the  Union, 
and  has  not  yet  been  adopted  by  the  English  courts  (o). 

(k)  2  H.  &  C.  744.  Chambers,  3  Q.  B.  D.,  p.  339. 
(/)  L.  R.  1  Ex.  239.  (o)  See.  however,  the  Scotch 

(m)  7  C.  B.  N.  S.,  287.  cases  of  Davidson  v.  Monkland 

(n)  This  case,  however,  will  be  Ry.  C,  27  Jur.  541  ;  Lumsden 

found    severely    criticised    by  71.  Russell,  28  Jur.  181,  and  Bal- 

Cockburn,    C.J..    in    Clark    v.  four  v.  Baird,  30  Jur.  124. 


TRESPASSERS  AND  LICENSEES.  275 


Position  of  Plaintiff  in  regard  to  Defendant' s 
Negligence. 


[113.] 


INDERMAUR   v.  DAMES. 

[L.  R.2C.P.  311  (1867).] 

Mr.  Dames  was  the  owner  of  a  sugar  refinery,  and 
employed  one  Duckhatn,  a  gas  engineer,  to  improve  his 
gas-meter.  Duckham  got  his  work  done  by  a  certain 
Saturday  evening  ;  But  it  was  arranged  that  he  or  one 
of  his  workmen  should  come  on  the  following  Tuesday 
to  see  if  the  improvement  was  working  satisfactorily. 
Accordingly  on  the  Tuesday  the  plaintiff,  Indermaur, 
presented  himself  as  Duckham's  representative  to  look 
at  the  gas-meter.  Now  it  happened  that  on  the  prem- 
ises, and  level  with  the  floor,  there  was  an  unfenced 
shaft  used  for  the  purpose  of  hauling  up  bales  of  sugar. 
When  the  shaft  was  being  used  for  that  purpose,  it  was 
usual  and  necessary  that  it  should  be  unfenced  ;  but 
when  not  being  used  there  was  no  particular  reason  why 
it  should  not  be  fenced.  Indermaur  fell  through  this 
shaft,  and  brought  an  action  for  personal  injuries.  The 
sugar  people  denied  their  liability  to  him,  contending 
that  he  was  a  mere  licensee,  and  that  they  were  under  no 
particular  duty  towards  him.  It  was  held,  however,  that 
that  he  was  not  a  mere  licensee,  as  he  had  come  on  law- 
ful business,  and  that,  as  the  whole  was  from  its  nature 
unreasonably  dangerous  to  persons  not  usually  employed 
on  the  premises,  tbey  were  liable. 

When  a  person  is  injured  on  somebody  else's  land,  and  by  that 
somebody's  degligence,  the  question  is  a  very  material  one — 
What  was  he  doing  there? 

1.   He  may  have  been  a  trespasser.     If  so,  he  cannot,  as  a  rule,  Trespassers. 
Tecover  damages.    But  there  are  exceptions.   For  instance,  though 
a  man  has  a  right,  as  against  trespassers,  to  have  a  dangerous  pit  Dangerous 
in  the  middle  of  his  field,  he  has  no  right  to  have  one  within  twenty-  pit. 


276 


TRESPASSERS    AND    LICENSEES. 


Spring-gun. 


Bird  v. 

Holbrook. 


Murley  v. 
Grove. 


Licensees. 
Going  out  to 
dinner. 


Concealed 
danger. 


five  yards  of  the  road  (p).  Bird  r.  Holbrook  (q)  is  a  well-known 
authority  on  tins  subject.  Tbere  tbe  defendant,  having  had  some 
valuable  flowers  and  roots  stolen  from  his  garden,  which  was  at 
some  distance  from  his  house,  had  set  a  spring-gun.  The  plaintiff, 
a  young  fellow  of  nineteen,  climbed  a  wall,  during  the  day- 
time, in  pursuit  of  the  stray  fowl  of  a  friend,  and  got  shot.  In 
spite  of  the  plaintiff  being  thus  a  trespasser,  it  was  held  that  the 
defendant  was  liable  in  damages.  "There  is  no  act,"  said  Best, 
C.  J.,  "which  Christianity  forbids,  that  the  law  will  not  reach  ; 
if  it  were  otherwise,  Christianity  would  not  be,  as  it  has  always 
been  held  to  be,  part  of  the  law  of  England.  I  am,  therefore, 
clearly  of  the  opinion  that  he  who  sets  spring-guns,  without  giv- 
ing notice,  is  guilty  of  an  inhuman  act,  and  that,  if  injurious  con- 
sequences ensue,  he  is  liable  to  yield  redress  to  the  sufferer." 
•  24  &  25  Vict,  c.  100,  s.  31  (re-enacting  7  &  8  Geo.  IV.  c.  18), 
makes  it  a  misdemeanour  to  set  spring-guns  or  man-traps,  unless 
it  be  for  the  purpose  of  protecting  one's  house  at  night,  or  of  de- 
stroying vermin 

But  in  the  recent  case  of  Murley  v.  Grove  (r),  the  defendant, 
while  erecting  houses  upon  land  adjoining  a  new  road  which  had 
not  been  dedicated  to  the  public,  had  dug  a  trench  across  the 
road  for  the  purpose  of  making  drains.  The  plaintiffs  servant, 
■while  driving  the  plaintiffs  horses  along  the  road  after  dark, 
drove  into  the  trench,  there  being  no  lights.  It  was  held  that 
the  plaintiff  could  not  recover  damages,  there  being  no  duty  cast 
on  the  defendant  to  protect  any  one  using  the  road  without  per- 
mission. 

2.  The  plaintiff  may  have  been  a  licensee. 

In  this  position  are  guests.  Whenever  you  go  out  to  dinner,  or 
are  stopping  with  a  triend,  you  are  a  licensee  ;  and,  in  respect  of 
the  ability  to  bring  an.action  against  your  host  for  his  negligence, 
you  are  little  better  than  a  trespasser.  "J  lady  with  a  raluahh  dress 
goes  out  to  dinner,  and  the  servant,  in  handing  the  soup,  negligently 
spoils  her  dress;  ivill an  action  lie  against  the  master ?"   (s). 

A  licensee  can  only  maintain  an  action  against  his  licensor 
when  the  danger  through  which  he  has  sustained  hurt  was  of  a 
latent  character,  which  the  licensor  knew  of  and  the  licensee  did 
not 

A  gentleman  was  once  leaving  a  friend's  house  after  paying  a 
call  when  a  loose  pane  of  glass  fell  from  the  door,  as  he  was  push- 
ing it  open,  and  cut  him  badly  ;  but  it  was  held  that  he  could  not 


(p)  5  &  6  Will.  IV.  c.  50,  s. 
70  ;  and  see  Barnes  v.  Ward,  9 
C.  B.  392,and  Hounsell  r.Smith, 
7C.  B..  N.  S.,  731. 

(q)  4  Bing.  62«  :  and  see  Ilott 
r.  Wilkes.  3  B  &  Aid.  304,  and 
Jordin  v.  Crump,  8  M.&  W.782. 

(/)  46  J.   P.   300.    "As  to   the 


dictum  in  Gallagher  v.  Humph- 
rey," said  Cave,  J.,  "I  cannot 
think  that  Crompton,  J.,  can  have 
been  correctly  report <  d. ' ' 

(s)  Per  Pollock,  C.  B.,  in 
Southcote  v.  Stanley,  1  H  &  N. 
247. 


TRESPASSERS  AND  LICENSEES.  277 

recover  damages  (/).  "Where  a  person,"  said  Bramwell,  P>.,  "is  gouthcote  v. 
in  the  house  of  another,  either  on  business  or  for  any  other  pur-  Stanley, 
pose,  he  lias  a  right  to  expect  that  the  owner  of  the  house  will 
take  reasonable  care  to  protect  him  from  injur}7;  for  instance, 
that  he  will  not  allow  a  trap-door  to  be  open,  through  which  the 
visitor  may  fall.  But  in  this  case  my  difficulty  is  to  see  that  the 
declaration  charges  any  act  of  commission.  W  a  person  asked  an- 
other to  walk  in  his  garden,  in  which  he  had  placed  spring-guns 
or  man-traps,  and  the  latter,  not  being  aware  of  it,  was  thereby 
injured,  that  would  be  an  act  of  commission.  But  if  a  person 
asked  a  visitor  to  sleep  at  his  house,  and  omitted  to  see  that  the 
sheets  were  properly  aired,  whereby  the  visitor  caught  cold,  he 
could  maintain  no  action,  for  there  was  no  act  of  commission,  but 
simply  an  act  of  omission"  (it). 

In  the  recent  case  of  Burchell  r.  Hickisson  (.r)  the  plaintiff  was  Little  boy 
a  little  boy  of  four,  who  one  day  accompanied  his  sister  to  the  lulling  into 
defendant's  house,  where  she  was  going  on  business.  The  girl 
went  up  the  defendant's  steps  all  right,  but  the  little  boy  tum- 
bled through  a  gap  in  some  railings  out  of  repair  into  the  area 
below.  It  was  held  that  the  action  could  not  be  maintained,  as 
the  little  boy's  position  could  be  placed  no  higher  than  that  he 
was  there  lawfully,  and  was  not  a  trespasser;  and,  that  being  so, 
the  only  duty  on  the  part  of  the  defendant  towards  him  was  to 
take  care  that  there  was  no  concealed  danger,  and  of  this  there  was 
no  evidence. 

In  Ivay  v.   Hedges  (y)   the  defendant   was  the   landlord  of  a  Use  of  roof 
house  at  Wapping,  which  was  let  out  in  apartments  to  several  ,nr  drying 
tenants,  each  of  whom  had  the  privilege  of  using  the  roof  for  the 
purpose  of  linen-drying.     On  an  accident  happening,  it  was  held 
that  the  mere  license  so  given  imposed  no  duty  on  the  defendant 
to  fence. 

SoinBatchelor  v.  Fortescue  (z),  a  plaintiff  suing  under  Lord  Batchelorv. 
Campbell's  Act,  was  held  to  be  disentitled  to  complain  of  the  Fortescue. 
defendant's  negligence  (even  if  she  could  show  it,  which  she 
could  not),  because  her  husband  was  only  a  bare  licensee  at  the 
most  when  he  met  with  his  death.  He  had  been  employed  to 
guard  some  unfinished  buildings,  and  wandered  needlessly  to  a 
place  where  the  defendant's  workmen  were  carrying  out  some  ex- 
cavations, when  a  chain  broke,  and  he  was  killed.  "'There  was 
no  evidence,"  said  Brett,  M.R.,  "to  show  that  the  defendant's 
workmen  had  reason  to  expect  the  deceased  to  be  at  the  spot 
where  he  met  with  his  death.  There  was  no  contract  between  the 
defendant  and  the  deceased:  the  defendant    did  not  undertake 


(f)    Southcote     v.       Stanley,  of*     this     distinction    between 

supra.     The    plaintiff    appears  commission  and   omission  is    not 

really  to  have  been  staying  at  beyond   question.     See  Smith 

the  defendant's  hotel  as  a  cus-  on  Negligence,  p.  31. 
tomer;  but  if  so.  that  fact  was         (x)  50  L.  J.,  C.  P.,  101. 
not  brought  out  by  the  plead-         (y)  9  Q.  B.  D.  80. 
ings.  (■:)  11  Q.  B.  D.  474. 

(v)  The  soundness,  however, 


278 


TRESPASSERS    AND    LICENSEES. 


Other  rases. 


( )n  lawful 
business. 


Thames 
waterman. 

Guest  at  inn. 

Elliott  v. 
Hall. 


Other  cases. 


with  the  deceased  that  his  servants  should  not  be  guilty  of  negli- 
gence; no  duty  was  cast  upon  the  defendant  to  take  care  that  the 
deceased  should  not  go  to  a  dangerous  place." 

The  cases  of  Corby  v.  Hill,  4  C.  B.,  N.  S.,  556;  Gautret  v.  Eg- 
crton,  L.R.2C.  P.  371;  Bolch  v.  Smith,  7  H.  &  N.  736;  and 
Wilkinson  v.  Fairrie,  32  L.  J.  Ex.  173;  may  also  be  referred  to 
on  the  question  when  a  licensee  can  successfully  sue. 

3.  The  plaintiff  may  have  been  on  lawful  business. 

And  this  is  the  best  position  of  all  to  be  in,  the  rule  being  that 
where  a  person  is  upon  premises  by  the  invitation  or  permission 
of  the  occupier,  on  lawful  business  in  which  both  he  and  the  oc- 
cupier have  an  interest,  there  is  a  duty  towards  such  person  cast 
upon  the  occupier  to  keep  the  premises  in  a  reasonably  secure 
condition.  Our  friend  Indermaur  was  considered  to  be  in  this 
position;  and  so,  in  later  cases,  were  a  licensed  waterman,  who 
went  on  board  a  barge  on  the  Thames  to  complain  of  its  illegal 
navigation  and  get  employment  if  he  could  (a),  and  a  customer 
at  an  inn  on  whom  the  ceiling  of  one  of  the  rooms  fell  (b). 

In  Elliott  v.  Hall  (c),  the  defendant,  a  colliery  owner,  had" con- 
signed coals  sold  by  him  to  the  buyers  by  rail  in  a  truck  rented 
by  him  from  a  waggon  company  for  the  purposes  of  the  colliery. 
Through  the  negligence  of  the  defendant's  servants  the  truck  was 
allowed  to  leave  the  colliery  in  a  defective  state,  and  the  conse- 
quence was  that  injury  was  occasioned  to  the  plaintiff,  one  of  the 
buyer's  servants,  who  was  employed  in  unloading  the  coals,  and 
had  got  into  the  truck  for  that  purpose.  It  was  held  that  there 
was  a  duty  on  the  part  of  the  defendant  towards  the  plaintiff  to 
exercise  reasonable  care  with  regard  to  the  condition  of  the  truck, 
and  that  he  was  liable.  "Thisseems  to  me,"  said  Grove,  J.,  "a 
much  stronger  case  than  Heaven  r.  Pender  (rf),  where  it  was  held 
that  the  defendant  was  liable.  Indermaur  v.  Dames  also  does  not 
seem  to  me  so  strong  a  case  as  this.  This  is  not  the  mere  case  of 
a  person  lawfully  coming  into  premises  for  the  purposes  of  busi- 
ness, but  the  defendant  must  have  known  that  the  plaintiff  must 
necessarily  get  into  the  truck  for  the  purpose  of  unloading  the 
coal.  The  only  case  that  seems  somewhat  in  the  defendant's 
favour  is  the  case  of  Collis  v.  Selden  (e),  where  it  was  alleged  that 
the  defendant  improperly  and  negligently  hung  a  chandelier  in  a 

public-house But  I  do  not  think  that  that  case  is  really 

an  authority  which  bears  upon  the  circumstances  of  the  present 
case. 

The  reader  should  also  refer,  on  this  branch  of  the  subject,  to 
Smith  r.  London  and  St.  Katharine  Docks  Co.,  L.  R.  3  C.  P.  326; 


(a)  White  v.  France,  2  C.  P. 
I).  308. 

(6)  Sandys  v.  Florence,  47  L. 
J.,  C.  P.,  599. 


(c)  15  Q.  B.  D.  255. 

(d)  11  Q.  B.  D.  503. 

(e)  L.  R.  3  C.  P.  495. 


SURVEYORS    OF    HIGHWAYS.  279 

Chapman  v.  Rothwell,  E.  B.  &  E.  168  ;  Nicholson  v.  Lane,  and 
Yorkshire  Ry.  Co.,  34  L.  J.  Ex.  84  ;  Holmes  v.  N.  E.  Ry.  Co., 
L.  R.  4  Ex.  254  ;  Martin  u.  G.  N.  Ry.  Co.,  24  L.  J.,  C.  P.,  209  ; 
Burgess  v.  G.  W.  Ry.  Co.,  32  L.  T.  70  ;  Wright  v.  L.  and  N.  W. 
Ry.  Co,,  1  Q.  B.  D.  252  ;  and  Jewson  v.  Gatti,  1  C.  &  E.  564. 


Actions  against  Surveyors   of  Highways,  &c. 


McKINNON  v.  PBNSON.  [H4-] 

[9  Exch.  009  (1854).] 

This  was  an  action  against  the  surveyor  of  county 
bridges  for  the  county  of  Cardigan.  One  of  his  bridges 
was  so  much  out  of  repair  that  the  plaintiff's  carriage 
was  pitched  into  the  river.  In  suing  for  the  damage 
thus  done,  the  plaintiff  practically  admitted  that  the 
a-ction  could  not  be  maintained  at  common  law,  but  he 
relied  on  a  certain  Act  of  Parliament  passed  rather  late 
in  Greorge  the  Third's  reign,  which,  in  his  view,  gave  43  Geo.  III. 
him  a  right  of  action.  It  was  held,  however,  that  the 
statute  did  not  alter  the  common  law  in  this  respect, 
and  that  the  action,  therefore,  could  not  be  maintained, 

In  1788,  in  the  case  of  Russell  v.  the  Men  of  Devon  (/),  it  had  The  Men  of 
"been  held  that  no  action  would  lie  by  an  individual  against  th$.  Devon. 
inhabitants  of  a  county  for  an  injury  sustained  in  consequence  of 
a  bridge  being  out  of  repair.      "  It  is  better,"  said  Ashhurst,  J., 
<;  that  an  individual  should  sustain  an  injury  than  that  the  pub- 
lic should  suffer  an  inconvenience." 

The  leading  case  was  followed  a  few  years  later  in  Young   v.  } '>ung  v. 

.  Davis 

Davis  («/),  which  was  an  action  by  a  foot  passenger  against  some 

Oxfordshire  surveyors  of  highways  for  allowing  a  highway  to  be 

out  of  repair,  whereby  the  plaintiff  fell  into  a  bole.      "  It  appears 

to  me,"  said  Pollock,  C.B.,  in  that  case,  "if  the  plaintiff  is  to 

.succeed  that  it  would  be  enlarging  the  sphere  of  legislation  very 


(/)  2  T.  R.  667.  (g)  7  H.  &  N.  760. 


280 


SURVEYORS    OF    HIGHWAYS. 


]  visti  notion 
between  mis- 
feasance. 
and  non-fea- 
sance. 


Waterers  as 
well  as  sur- 
veyors. 


A  sinking 
town. 


much,  and  rendering  it  impossible  to  get  anybody  to  discharge 
the  duties  of  surveyor  of  highways  ;  because  we  all  know  what 
will  be  the  practical  result.  A  surveyor  of  highways  will  be- 
come a  sort  of  insurer  of  every  one  travelling  along  the  road,  and 
not  a  single  accident  will  happen  without  an  action  being 
brought. "  But  although  a  survey' >r  is  not  liable  for  non-feasance, 
he  is  for  w/.s-feasance.  Two  or  three  years  ago  a  vestry  ordered 
their  surveyor  to  get  the  level  of  a  road  raised.  The  surveyor, 
accordingly,  employed  a  contractor  for  the  labour  part  of  the 
job,  but  made  no  agreement  with  him  as  to  fencing  or  lighting, 
and  reserved  to  himself  the  superintendence.  The  plaintiff  driv- 
ing along  the  road  one  night  in  his  dog-cart  was  upset  through 
not  seeing  the  obstruction,  and  it  was  held  that  the  surveyor  was 
liable  to  him  (h). 

Moreover,  surveyors  of  highways  may  be  liable  as  having  acted 
in  some  other  capacity.  In  a  very  recent  case  (i),  the  plaintiff, 
whilst  walking  in  Charles  Street,  Stepney,  fell  over  the  iron  flap 
cover  to  a  water-meter  box  which  was  imbedded  in  the  pave- 
ment, and  had  worn  smooth  by  traffic,  and  broke  his  leg.  '"The 
question  to  be  considered,"  said  Cotton,  L.J.,  "  is  whether  the 
iron  flap  was  laid  down  by  the  defendants  as  surveyors  of  high- 
ways or  in  a  different  capacity  and  under  a  different  authority, 
so  as  to  make  them  liable.  It  is  clear  that  it  was  put  down  by 
the  defendants  as  wafercrs  of  the  highway,"  i.  e.,  under  section  116 
of  the  Metropolitan  Local  Management  Act,  1855  (k). 

In  Burgess  ?•.  the  Northwich  Local  Board  (<)  the  action  was  by 
some  owners  of  houses  abutting  on  a  highway  which  was  vested 
in  the  defendants,  a  local  board  acting  under  38  &  39  Vict.  c.  55 
(the  Public  Health  Act,  1875),  and  having  the  powers  and  lia- 
bilities of  surveyors  of  highways.  The  abstraction  of  salt  had 
caused  a  subsidence  of  the  ground,  and  the  defendants  found  it 
necessary  to  raise  the  road.  To  meet  the  new  level  of  the  road, 
the  plaintiffs  raised  their  houses  ;  and  now  claimed  compensa- 
tion under  section  308  of  the  Act.  It  was  held,  however,  that, 
as  the  highway  was  vested  in  the  defendants,  no  action  of  tres- 
pass could  have  been  maintained  by  the  plaintiffs  even  if  more 
materials  had  been  placed  on  the  road  than  a  surveyor  of  high- 
ways could  justify,  and  that  the  plaintiffs  had  no  right  to  have 


(h)  Pendlebury  r.Greenhalgh, 
1  Q.  B.  D.  36;  and  see  Foreman 
r.  Mayor  of  Canterburv,  L.  K. 
0  Q.  B.  214. 

(i)  Blackmore  p.  Vestry  of 
Mile  End  Old  Town,  51  L.  J.. 
Q.  B.,  496.  following  White  p. 
Hindley  Local  Board,  L.  R.  10 
Q.  B.  '219.  See  also  Kent  v. 
Worthing  Local  Board,  48  L.T., 


X.  S.  362,  where  the  defendants 
as  water  authority  had  fixed  in 
the  highway  an  iron  pipe  with 
a  valve  cover  at  the  top,  proper 
in  itself,  but  certain  in  the  or- 
dinary course  of  things  to  be- 
come dangerous  unless  precau- 
tions were  taken. 

(k)  18  &  19  Vict.  c.  120. 

(I)  6  Q.  B.  D.  264. 


SURVEYORS    OF   HIGHWAYS.  281 

« 
the  road  maintained  at  the  level  to  which  it  had  accidentally  and 
recently  sank  ;  and  that  the  works  of  the  defendants  were  not 
done  ''in  exercise  of  any  of  the  powers"  of  the  Act  within  sec- 
tion 308,  but  were  done,  if  not  strictly  in  pursuance  of  their 
duty  as  surveyors  of  highways,  at  all  events  in  exercise  of  such 
powers  as  surveyors  of  highways  have;  and,  consequently,  that 
the  plaintiffs  were  not  entitled  to  compensation. 

As  to  the  liability  of  public  officers  other  than  surveyors  of  Liability  of 
highways,  the  following  rule  from  Addison  on  Torts  (ro)  may  he  public 
quoted  : — ';  Whenever  an  Act  of  Parliament  imposes  upon  com-  ',",'  ies  £ener" 
missioners,  or  upon  any  public  body,  the  duty  of  maintaining 
or  repairing  any  public  work,  and  special  damage  is  sustained 
by  a  particular  individual  from  the  neglect  of  the  public  duty, 
an  action  for  damages  is  maintainable  against  such  commission- 
ers or  public  body,  unless  there  are  provisions  in  the  statutes 
creating  them  for  limiting  their  liability,  or  the  duty  of  repair- 
ing is  not  absolute  ;  the  rule  being  that,  in  the  absence  of  some- 
thing to  show  a  contrary  intention,  the  Legislature  intends  that 
the  body,  the  creation  of  the  statute,  shall  have  the  same  duties, 
and  that  its  funds  shall  be  rendered  subject  to  the  same  liabili- 
ties, as  the  general  law  would  impose  on  a  private  person  doing 
the  same  things  ;  and  this  whether  they  have  or  have  not  funds 
at  their  disposal  for  effecting  the  repairs  ;  though,  if  there  are  no 
funds,  there  may  be  a  difficulty  in  the  way  of  the  plaintiffs  get- 
ting his  damages." 

The  student  is  also  recommended  to  refer  to  the  following  other  cases, 
cases  : — Hartnall  v.  Ryde  Improvement  Commissioners,  4  B.  & 
S.  361  ;  Ohrby  v.  Ryde  Commissioners,  5  B.  &  S.  743  ;  Forbes  v. 
Lee  Conservancy  Board,  4  Ex.  D.  116;  Gibson  v.  Mayor  of  Pres- 
ton, L.  R.  5  Q.  B.  218;  Parsons  v.  St.  Matthew,  L.  R.  3  C.  P.  56; 
Mersey  Docks  Trustees  v.  Gibbs,  L.  R.  1  H.  L.  93  ;  Parnaby  v. 
Lancaster  Canal  Co.,  11  A.  &  E.  223;  the  Borough  of  Bathurst  v. 
Macpherson,  4  App.  Ca.  256  ;  Howitt  v.  Nottingham  Tramways 
Co.,  12  Q.  B.  D.  16  ;  and  Barham  v.  Ipswich  Docks  Commission- 
ers, 54  L.  T.  23. 

A  word  may  be  said  about  the  liability  of  the  Hundred  to  Damage  by 
make  compensation  for  damage  done  by  rioters.  The  statute  to  rioters, 
be  consulted  is  7  &  8  Geo.  IV.  c.  31,  and  the  leading  case  is 
Drake  v.  Footitt,  7  Q.  B.  D.  201.  That  was  a  case  arising  out  of 
an  election  at  Great  Mario w  in  April,  1880,  and  it  was  held  that 
a  house  damaged  by  rioters  is  not  "feloniously  demolished 
wholly  or  in  part  "  so  as  to  entitle  the  person  damnified  to  com- 
pensation from  the  Hundred  under  7  &  8  Geo.  IV.  c.  31,  s.  2,  un- 
less the  rioters  when  attacking  the  house  had  an  intention  irholly  to 
destroy  it.  It  would  appear  that  the  Hundred  cannot  be  made 
liable   for  things  stolen   by  rioters,    that  being    a  substantive 

fro)  5th  ed.,  p.  667. 


282  ACTIONS  AGAINST    MASTERS. 

and  distinct  felony  (n).  The  law,  however,  is  in  an  unsettled 

and  unsatisfactory  state,  and    fresh  legislation  may  be  antici- 
pated. 


[116.] 


Servant  Suing  Master  for  Injury  during  Ser- 
vice. 

[115.]  PRIESTLEY  v.  FOWLER. 

[3  M.  &  W.  1  (1837).] 

Fowler  was  a  butcher,  and  Priestley  was  his  man. 
It  was  Priestley's  duty  to  take  meat  round  in  a  van  to 
the  various  customers.  These  seem  to  have  been  pretty 
numerous,  for  one  day  such  a  quantity  of  shoulders  of 
mutton  and  rounds  of  beef  were  put  on  board  that  the 
van  broke  down,  and  Priestley's  thigh  was  fractured. 
The  unfortunate  butcher- boy  now  brought  an  action 
against  his  master,  but  it  was  held  that  the  action  did 
not  lie.  "The  servant,"  said  the  court,  "is  not  bound 
to  risk  his  safety  in  the  service  of  his  master,  and  may, 
if  he  thinks  fit,  decline  any  service  in  which  he  reason- 
ably apprehends  injury  to  himself  ;  and  in  most  of  the 
cases  in  which  danger  may  be  incurred,  if  not  in  all, 
he  is  just  as  likely  to  be  acquainted  with  the  probabil- 
ity and  extent  of  it  as  the  master." 


MELLORS  r.  SHAW. 
[30  L.  J.,  Q.  K,  333  (1861).] 


This  was  an  action  by  a  miner  against  his  masters, 
the  proprietors  of  the  mine.  The  sides  of  the  shaft  had 
been  left  in  an  unsafe  condition,  and  in  consequence 
some  of  the  "  bind  "  fell  on  the  man's  head  and  injured 


(«)  See  Beckwith  v.  Wood,  1   B.    &    Aid.    487;    Burrows    v. 
Wright,  1  East,  615;  and  Greasley  v.  Higginbottom,  1  East,  636. 


ACTIONS    AGAINST    MASTERS.  283 

him  severely.  The  plaintiff  was  ignorant  of  the  dan- 
ger under  which  he  was  working,  but  one  of  the  defend- 
ants, being  the  superintendent  of  the  mine,  was  of  course 
aware  of  it.      On  these  facts  it  was  held  that  the  action  < 

could  be  maintained. 

As  a  rule,  .1  servant  cannot  bring  an  action  against  his  master  Common  em- 
for  an  injury  sustained  in  the  course  of  the  service.     All  the  or-  ployment. 
dinary  risks  of  the  service,  including  the  risk  of  one  of  his  fel-  General  rule, 
low-servants  engaged  in  a  common  employment  negligently  caus- 
ing him  any  injury,  he  is  taken  to  have  contemplated  at  the  time 
of  the  contract,  and  to  have  made  allowance  for  his  wages  (o). 

Until  1880  there  were  not  many  exceptions  to  this  rule.  But  Exceptions, 
it  was  the  master's  duty  to  take  reasonable  precautions  to  insure 
the  safety  of  his  servants.  Thus,  if  be  had  omitted  to  provide 
competent  lellow-servants,  or  safe  and  efficient  machinery,  or  if 
his  own  personal  negligence — or  even  that  of  a  person  who  might 
be  regarded  as  a  deputy-master — had  brought  about  the  accident, 
he  was  not  exempt  from  liability  ;  unless  indeed  where,  as  in  the 
case  of  a  servant  being  very  well  aware  of  the  dangerous  ma- 
chinery he  was  working  with,  the  maxim  volenti  non  fit  injuria 
had  application  (p). 

Though  the  doctrine  of  common  employment  has  not  by  any  Employers 
means  been  abolished  yet  (q), — whether  such  a  consummation  is  Liability 
to  be  wished  or  not,— the  Employers  Liability  Act,  1880  (43  &  Act'  188°- 
44  Vict.  c.  42),  gives  "workmen"  increased  rights  of  action  against 
their  masters  for  personal  injuries  sustained  during  the  service. 
"  As  far  back,"  says  Mr.  Justice  Cave,  in  his  very  clear  judg-  Historical 
ment  in  Griffith  v.  the  Earl  of  Dudley  (r),  "  as  the  date  of  the  review  by 
decision  in  Priestley  v.   Fowler,  the  law  was  that  the  workman  p 
could  not  recover  for  injuries  sustained  by  him  through  the  neg- 
ligence of  a  fellow-servant.     In  Priestley  v.  Fowler  this  rule  was 
said  to  be  founded  upon  an  implied  contract  between  master  and 
workman  that  the  master  should   not  be  liable.     The  courts  of 
common  law  have  always  felt  hesitation  in  holding  that  tbere 
could  be  any  right  of  action  otherwise  than  arising  out  of  con- 
tract or  tort.     They  therefore  applied  the  doctrine  of  implied  con- 
tract, the  effect  of  which,  so  far  as  a  man's  legal  liability  was  eon- 

(o)  SeeWigrnore  v.  Jay,  5  Ex.  v.  New  Gas  Co.,  1  Ex.  D.  251  ; 
3.54  ;  Charles  v.  Tavlor,*3  C.  P.  Woodley  v.  Met.  Ry.  Co.,  2  Ex. 
1)  V.):l  ;  Wilson  v.  Merry,  L.  R.  D.  384  ;  and  Senior  v.  Ward,  1 
1  Sc.  App.  326  ;  Swainson  v.  N.  E.  &  E.  385. 
E.  Ry.  Co.,  3  Ex.  D.  341  ;  and  (7)  It  is  still  the  law  with  re- 
Morgan  c.  Vale  of  Neath  Ry.  gard  to  all  actions  begun  in  the 
Co.,  L.  R.  1.  Q.  B.  149.  High   Court    of    Justice.     The 

(p)  See  Murphy  v.  Smith,   19  new  Act  will  expire,  unless  re- 

C.  B.,  N.  S.,  361  ;  Ashworth  v.  newed,  on   Dec.   31st,    1887.— 

Stanwix,  1  B.  &  S.  437  ;  Webb.  Sec.  10. 
i'.  Tarrant,  18  C.  B.  787 ;  Allen         (r)  9  Q.  B.  D.  365. 


284  ACTIONS  AGAINST  MASTERS.        • 

cerned,  was  much  the  same  as  if  there  had  heen  an  express  con- 
tract. The  doctrine  was  extended  by  Wilson  v.  Merry  (s)  to  in- 
juries caused  to  a  workman  by  a  foreman  or  person  occupying  a 
position  of  superintendence  in  the  same  employment.  The  Em- 
ployers Liability  Act,  was  passed  to  remove  the  difficulty  arising 
from  the  decision  in  Wilson  v.  Merry.  The  effect  of  it  is  that  the 
workman  may  bring  his  action  in  five  specified  cases,  and  the  em- 
ployer shall  not  be  able  to  say  in  answer  that  the  plaintiff"  occu- 
pied the  position  of  workman  in  his  service,  and  must  therefore 
be  taken  to  have  impliedly  contracted  not  to  hold  the  employer 
liable.  In  other  words,  the  legal  result  of  the  plaintiff  being  a 
workman  shall  not  be  that  he  has  impliedly  contracted  to  bear 
the  risks  of  the  employment." 

„.  ,  .       „  Let  us  proceed  to  consider  the  cases  in  which  the  new  Act  gives 

Rights  of  ,  ,       •   , 

workmen  a  wor™an  the  right  to  sue  his  employer. 

under  Act  of      The  first  question  is,  Who  is  a  "  workman?"   The  8th  section 

1880.  0f  the  Act  says — 

"  Work-  "  The  expression  '  workman  '  means  a  railway  servant  and  any 

men."  person  to  whom  the  Employers  and  Workman  Act,  1875  (t)  ap- 

plies." 

Turning  to  the  Act  referred  to,  we  find  that 
"  The  expression  'workman'  does  not  include  a  domestic  or 
menial  servant,  but  save  as  aforesaid  means  any  person  who  being 
a  labourer,  servant  in  husbandr}',  journeyman,  artificer,  handi- 
craftsman, miner,  or  otherwise  engaged  in  manual  labour,  whether 
under  the  age  of  twenty-one  years  or  above  that  age,  has  entered 
into  or  works  under  a  contract  with  an  employer,  whether  the 
contract  be  made  before  or  after  the  passing  of  this  Act,  be  ex- 
press or  implied,  oral  or  in  writing,  and  be  a  contract  of  service 
or  a  contract  personally  to  execute  any  work  or  labour." 

Section  13  provides  that  the  Act  "shall  not  apply  to  seamen, 
or  to  apprentices  to  the  sea  service. 

The  term  '"workman,"  as  above  defined,  includes  one  who  has 
contracted  personally  to  execute  manual  work,  although  he  is  as- 
sisted by  others  whom  he  selects  and  pays  (u).  But  in  Morgan 
v.  London  General  Omnibus  Co.  (x),  it  was  held  that  the  conduc- 
tor of  an  omnibus  was  not  entitled  to  the  benefit  of  the  Employ- 
ers Liability  Act.  "  I  cannot  think,"  said  Bret,  M.R.,  "that  he 
falls  within  any  of  the  classes  enumerated  :  he  is  not  '  engaged  in 
manual  labour,'  he  does  not  lift  the  .passengers  into  and  out  of 
the  omnibus  ;  it  is  true  that  he  may  help  to  change  the  horses,  but 
his  real  and  substantial  business  is  to  invite  persons  to  enter  the 
omnibus  and  to  take  and  keep  for  his  employers  the  money  paid 
by  the  passengers  as  their  fares  ;  in  fact,  he  earns  the  wages  be- 
coming due  him  through  the  confidence  reposed  in  his  honesty." 
If  the  workman  has  been  hurt  through  a  preventible  defect  in 

(s)  L.  R.  rHrLTSec.  326.  (x)  12  Q.  B.  D.  201,  and  see 

(M  38  &  39  Vict.  c.  90.  Jackson  v.  Hill,  13  Q.  B.  D.  618, 

in    (iraingeru.  Aynsley  and  and  Brown  v.  ButterlyCoal  Co., 

Bromlej  v.  Tarns,  G  Q.  B.  D.  182.  53  L.  T.  964. 


ACTIONS  AGAINST  MASTERS. 


285 


the  condition  of  the  irays,  works,  machinery,  or  plant  used  in  his 
master's  business  (.»/);  or  through  the  negligence  of  a  superintend- 
ent (z);  or  of  any  fellow-servant  whose  on/as  lie  had  to  obey,  audi 
was  obeying,  at  the  time  of  the  accident  (a);  or  through  a  fel- 
low-servant's obedience  to  stupid  rules  or  instructions  of  his  mas- 
ter (b);  or  through  the  negligence  of  a  fellow-servant  having  the 
charge  or  control  of  any  signal,  points,  locomotive  engine,  or  train 
upon  a  railway  (c); — in  all  these  cases, — the  workman  (or,  if  he 
dies,  his  representatives)  may  sue  his  employer  for  compensa- 
tion {d).     If,  however,  he  was  previously  aware  of  the  defect  or 


(//)  The  Act  applies  to  the 
case  of  plant  being  unfit  for  the 
purpose  for  which  it  is  used, 
though  no  part  of  it  is  shown, 
to  be  unsound.  In  Cripps  v. 
Judge,  13  Q.  B.  D.  583,  the 
plaintiff  had  been  injured  by 
the  breaking  of  a  ladder,  which 
may  have  been  good  enough 
for  ordinary  purposes,  but 
which  was  insufficient  for  the 
particular  purpose  for  which  it 
was  being  used,  and  he  was 
held  entitled  to  recover,  Heske 
v.  Samuelson,  12  Q.  B.  D.  30, 
being  approved  and  followed. 
But  in  McGiffin  r.  Palmer's 
Shipbuilding  Co.,  10  Q.  B.  D. 
5,  it  was  held  that  "any  defect 
in  the  condition  of  the  ways" 
meant  a  defect  of  a  permanent 
or  quasi-permanent  nature,  so 
that  an  action  could  not  be 
brought  for  an  injury  caused  by 
a  piece  of  iron  having  been  neg- 
ligently left  projecting  into  the 
roadway.  See  also  Paley  v. 
Garnet  t,  16  Q,  B.  D.  52,  and 
Howe  v.  Mark  Firth,  W.  N.Ap. 
10,  1886. 

(z)  in  Osborne  v.  Jackson,  11 
Q.  B.  D.  619,  it  was  held  that 
a  man  might  be  "in  the  exer- 
cise of  superintendence,  "though 
at  the  time  voluntarily  assist- 
ing in  manual  labour,  and 
Shaffers  v.  General  Steam  Navi- 
gation Co.,  10  Q.  B.  D.  356,  was 
distinguished  on  the  ground 
that  "the  negligent  person 
there  had  two  duties,  and  was 
not  negligent  in  his  duty  of 
superintendence  so  as  to  cause 
the  accident." 

(a)  See  Mill  ward  v.  Midland 
Railway  Co.,  14  Q.  B.  D.  68, 
where  the  plaintiff,  a  boy  of  14, 
employed  by  a  railway  com- 
pany as  a  van  guard,  had  met 
20   COMMON   LAW. 


with  an  accident  (iron  window 
frames  falling  on  him)  through 
obeying  the  directions  of  the 
driver,  and  was  allowed  to  re- 
cover. But  see  also  Bunker  v. 
the  same  railway  company, 
where  another  boy  who  had 
done  what  his  foreman  told  him 
to  do  was  less  fortunate  in  his 
litigation.  "  In  this  particular 
instance,"  said  the  Court,  "the 
plaintiff,  being  under  «the  age 
of  15,  knew  that  by  the  rules  of 
the  defendant  company  he  was 
not  allowed  to  drive;  he  there- 
fore was  not  bound  to  obey  this 
order,  as  the  foreman  was  not  a 
person  to  compel  his  obedience 
to  it."     (47  L.  T.   N.  S.,  476.) 

(b)  Rules  or  bye-laws  having 
the  sanction  of  a  government  de- 
partment cannot  be  objected  to 
as  improper  or  defective. — Sec. 
2,  sub-s.  2. 

(c)  The  term  "  railway  "  ap- 
plies to  a  temporary  railway 
laid  down  by  a  contractor  for 
the  purposes  of  the  construction 
of  works;  Doughty  v.  Firbank, 
10  Q.  B.  D.  358.  But  a  steam 
crane,  fixed  on  a  trolly  and 
propelled  by  steam  along  a  set 
of  rails,  is  not  a  "locomotive 
engine"  within  the  section; 
Murphy  v.  Wilson,  52  L.  J.,  Q. 
B.,  524.  Trucks  upon  a  siding 
in  a  goods  yard  are  "  upon  a 
railway,"  for  the  sidings  form 
a  part  of  the  line;  Cox  ».  G.  W. 
Rv.  Co.,  9  Q.  B.  D.  106.  In 
Gibbs  v.  G.  W.  Ry.  Co.,  12  Q. 
B.  D.  208,  it  was  held  that  a 
person  who  was  employed  by  a 
railway  company  to  clean,  oil, 
and  adjust  the  points  was  not  a 
"person  having  the  charge  or 
control  "  of  them. 

(d)  Sec.  1;  and  see  Robins  v. 
Cubitt,  46  L.  T.  535. 


286 


ACTIONS    AGAINST   MASTERS. 


Conditions  of 
suing  under 
Act  of  1880. 


Inaccurate 
notices. 


Amount  re- 
coverable 
under  Act  of 

1880. 


negligence  which  caused  the  injury,  he  must  have  told  his.  mas- 
ter about  it,  or  he  will  be  out  of  court  altogether  (e). 

Written  (/)  notice  (which,  however,  may  be  excused  on  good 
grounds  in  case  of  death),  giving  the  name  and  address  of  the  per- 
son injured,  and  stating  in  ordinary  language  the  cause  and  date  of 
the  injury,  must  be  served  (g)  on  the  employer  within  six  weeks, 
and  the  action  must  be  commenced  (in  the  county  court,  unless 
removed  (h)  on  the  application  of  either  party)  within  six  months 
of  the  accident.  In  the  case  of  death,  the  action  may  be  com- 
menced any  time  within  twelve  months  from  the  time  of  death  ( i). 

Defects  and  inaccuracies  in  the  notice  required  by  the  Act  are 
of  no  consequence  unless  the  judge  before  whom  the  case  is  tried 
believes  two  things,  viz.,  first,  that  the  defendant  is  prejudiced 
in  his  defence  by  the  bad  notice,  and  secondly,  that  the  defect  or 
inaccuracy  was  not  the  result  of  accident  or  ignorance,  but  was 
for  the  express  purpose  of  misleading  (k).  Moreover,  "The 
notice  is  supposed  to  be  given  by  a  person  in  humble  sphere  of 
life,  and  not  possessed  of  much  knowledge.  It  is  to  be  written 
in  'ordinary  language,'  that  is,  the  party  is  to  use  his  own  un- 
tutored language.  If  it  is  to  be  construed  with  vigorous  strict- 
ness, the  Act  will  be  made  nugatory  "  (l). 

The  plaintiff  in  an  action  under  the  Employers'  Liability  Act, 
1880,  cannot  recover  more  than  "such  sum  as  may  be  found  to 
be  equivalent  to  the  estimated  earnings,  during  the  three  years 
preceding  the  injury,  of  a  person  in  the  same  grade  employed 
during  those  years  in  "  a  similar  employment  and  the  same  dis- 
trict (in).  In  Borlick  v.  Head  (»)  it  was  held  that  a  plaintiff 
might  give  evidence,  not  only  of  the  wages  which  he  had  been 


(e)  Sec.  2,  sub-s.  3;  and  see 
Stuart  v.  Evans,  31  W.  R.  706; 
Weblin  v.  Ballard,  34  W.  R.  455; 
Griffiths  v.  London  and  St. 
Katharine  Docks  Co.,  13  Q.  B. 
D.  259;  and  Martin  v.  Conuah's 
Quay  Alkali  Co.,  33  W.  R.  216. 
In  the  last-mentioned  case  a 
wagon  was  in  a  defective  state, 
of  which  the  plaintiff  was 
aware,  and  he  used  it  in  such  a 
way  as  to  cause  injury  to  him- 
self when  he  knew  how  to  use 
it  and  might  have  used  it  so  as 
not  to  cause  injury  to  himself. 

(/)  Moyle  v.  Jenkins,  51  L. 
J.,  Q.  B.,  112;  and  see  Keen  v. 
Millwall  Dock  Co.,  51  L.  J., 
Q.  B.,  277.  The  notice  may 
probably  be  contained  in  sev- 
eral documents. 

(g)  As  to  mode  of  service,  see 
Adams  v.  Nightingale,  72  L.  T., 
p.  424. 


(h)  An  action  may  be  remov- 
ed into  the  Superior  Court  (1.) 
by  certiorari,  (2.)  by  order  of 
the  High  Court,  or  (3.)  by  or- 
der of  the  county  court  where 
it  turns  out  that  the  amount  is 
beyond  the  jurisdiction  of  the 
county  court.  See  the  recent 
case  of  Munday  v.  Thames 
Ironworks,  etc.,  Co.,  47  L.  T., 
N.  S.,  351. 

(i)  Sees.  4  and  7. 

(k)  Sec.  7.  In  Carter  v. 
Drysdale,  12  Q.  B.  D.  91,  the 
plaintiff's  notice  did  not  give 
the  date  of  the  injury,  but  the 
omission  was  held  to  be  of  no 
consequence. 

(/)  Per  Cave,  J.,  in  Stone  v. 
Hyde,  9  Q.  B.  D.  76;  and  see 
Clarkson  v.  Musgrave,  9  Q.  B. 
D.  386. 

(m)  Sec.  3. 

(n)  34  W.  R.  102. 


NEGLIGENCE    OF   RAILWAY    COMPANIES.  287 

earning  with  the  defendants,  but  also  of  what  he  had  been  get- 
ting  for  overtime  with  another  employer.  "Section  3  of  the 
Employers  Liability  Act,  1880,  "  said  Cave,  J.,  "does  not  give. 
a  measure  of  damages,  but  the  limit  of  the  maximum  damages 
which  may  be  awarded  under  that  Act.  " 

A  contract  by  a  workman  not  to  claim  compensation  for  per-  Contracting 
sonal  injuries  under  the  Act  is  valid  ;  and,  if  the  injury  results  out  of  Act. 
in  death,  destroys  the  surviving  relatives'  right  of  action  under 
Lord  Campbell's  Act  (o). 

It  is  proposed  by  many  persons  to  amend  the  Employers  Lia-  Probable 
bility  Act  by  preventing  persons  from  contracting  out  of  it.  by  Amendment 
checking  the  removal  of  cases  into  superior  courts,  by  abolishing 
the  necessity  for  notice,  by  raising  the  limit  of  compensation  re- 
coverable,  by  extending  the  benefits  of  the  Act  to  seaman,  and 
in  other  ways. 

A  person  who  volunteers  to  assist  servants  engaged  in  their  work  Volunteers, 
becomes  their  fellow-servants  so  far  as  an  action  for  personal  in- 
juries against  the  employer  is  concerned  (p\     But  the  consignee 
of  goods  who  with  the  employer's  assent  assists  the  employer's 
servants  to  unload  is  not  a  volunteer  (q). 


Liability  of  Contracting  Company  for  Negli- 
gence of  a  Second  Company. 

THOMAS  v.  RHYMNEY  RAILWAY  CO.  [117.] 

[L.  R.  6  Q.  B.  266  (1871).] 

Mr.  Thomas  was  a  railway  passenger  from  Caerphilly 
to  Cardiff.  Midway  between  these  two  stations  was 
Llandaff.  From  Caerphilly  to  Llandaff  the  line  be- 
longed to  the  Rhymney  Railway  Company,  and  from 
Llandaff  to  Cardiff  to  the  Taff  Vale  Railway  Company, 
the  Llandaff  station  being  also  the  exclusive  property 
and  under  the  exclusive  control  of  the  latter  company. 

(o)  Griffiths  v.  Dudley,  9  Q.  S.  800. 
B.  D.  357.  (q)  Wright  v.  L.  &  X.  W.  Ry. 

(p)  Deggv.  Midland  Ry. Co.,  Co.,  1  Q.-  B.   D.   252;  and  see 

1  H.  &  N.  773  :  and  see  Abra-  Holmes  v.  N.  E.  Ry.  Co.,  L.  R. 

ham  v.  Reynolds,  5  H.  &  N.143,  6  Ex.  123. 
and  Potter  v.  Faulkner,  IB.  & 


288  NEGLIGENCE    OF   RAILWAY    COMPANIES. 

The  Rhymney  Railway  Company,  however,  had  run- 
ning powers  over  the  line  from  Llandaff  to  Cardiff,  and 
issued  through  tickets  for  the  whole  journey  from  Caerp- 
hilly to  Cardiff.  It  was  one  of  these  tickets  that  Mr. 
Thomas  took  ;  and  his  contract  therefore  was  with  the 
Rhymney  Railway  Company. 

All  went  well  till  the  episcopal  city  was  reached  ;  but 
at  Llandaff  station  the  station-master,  a  servant  of  the 
Taff  Vale  Company, was  guilty  of  a  gross  piece  of  bung- 
ling. He  allowed  the  train  in  which  Mr.  Thomas  was 
travelling  to*  leave  the  station  only  three  minutes  after 
an  engine  and  tender  of  the  Taff  Vale  Company,  carry- 
ing no  tail  light,  though  the  night  was  very  dark,  had 
started  on  the  same  line  of  rails.  The  consequence  was 
that  Mr.  Thomas's  train  ran  into  the  engine  and  tender, 
and  Mr.  Thomas,  with  other  passengers,  was  much  hurt. 
The  question  was  whether  the  Rhymney  Company  were 
responsible  to  the  plaintiff  for  the  negligence  of  the 
Taff  Vale  Company,  and  it  was  held  that  they  were, 
for  it  was  with  them  that  the  contract  had  been  made. 

Blake's  case.  In  deciding  Tltomns  v.  The  Rhymney  Railway  Co.,  the  judges 
followed  a  case  of  Great  Western  Railway  Co.  v.  Blake  (r),  hold- 
ing that  it  made  no  difference  as  to  the  defendants'  liability 
whether  they  ran  over  the  other  company's  line  by  virtue  of 
running  powers  conferred  on  them  by  Act  of  Parliament  or  by 
arrangement. 

Mr.  John  on  The  principle  is  not  confined  to  railway  companies.  A  Mr. 
board  the  John  wished  to  go  by  the  defendant's  steam-boat  from  Mil  ford 
steamer.  Haven  to  Liverpool.      Passengers   embarking  with  that  object 

used  first  to  go  on  board  a  hulk  in  the  harbour  belonging,  not  to 
the  defendant,  but  to  a  Mr.  WTilliams  ;  and  thence  they  would 
go  on  board  the  steamer.  Through  the  negligence  (presumably) 
of  Mr.  Williams,  a  certain  hatchway  on  board  this  hulk  was  left 
unprotected,  and  Mr.  John  after  taking  his  ticket  fell  down  it  (s). 
For  this  disaster  the  steam-boat  proprietor  was  held  respon- 
sible on  the  Blake  and  Rhymney  principles,  namely,  that  he 
must  be  taken  to  have  warranted  that  no  part  of  the  road  should 
be  defective  through  negligence. 

(r)  7  A.  &  N.  987.  (s)  John  v.  Bacon,  L.  R.  5  C. 

P.  437. 


NEGLIGENCE    OF    RAILWAY    COMPANIES.  289 

It  is  to  be  observed,  however,  that  the  contract  of  a  company  Contracting 

with  the  person  to  whom  they  have  issued  a  ticket  as  to  accidents  company  not 

happening  through  other  people's  negligence  extends  only  to  per-  responsible 

sons  connected  with  carrying  the  passenger.     They  are  not  re-         collateral 

., ,     .         ,.   ,       .  ,.  ,  operations, 

sponsible  for  collateral  operations.     In  a  case  some  years  ago  a 

gentleman  took  a  ticket  from  the  .Midland  Railway  Company  to 
be  carried  by  them  on  their  line  from  Leeds  to  Sheffield.  The 
London  and  North  Western  Railway  Company  had  running 
powers  over  a  portion  of  the  line  and  through  the  driver  disobey- 
ing the  Midland  signals,  one  of  their  trains  dashed  into  the  Mid- 
land train  and  injured  the  traveller  bound  for  Sheffield.  He 
brought  liis  action,  but  was  not  successful,  because,  as  he  was  in- 
formed, the  judges  "cannot  connect  with  the  management  of  the 
railway  something  which  is  the  direct  effect  not  of  defective 
regulations  of  the  company,  not  of  any  act  to  which  they  were 
parties,  not  of  the  neglect  of  any  person  whose  services  they  use, 
but  of  the  neglect  of  some  persons  over  whom  they  have  no  con- 
trol whatever,  and  of  whose  services  they  do  not  make  use"  (t). 

A  railway  company  may  protect  itself  by  an  unsigned  condi-  Effect  of 
tion  from  liability  for  the  loss  of  goods  beyond  its  own  line,  the  conditions 
Railway#and  Canal  Traffic  Act  only  having  reference  to  a  com-  i'r.aj  " 

pany's  own  line.  The  chief  authority  for  this  is  a  case  where  a 
person,  having  taken  a  ticket  from  the  South  Eastern  Railway 
Company  to  go  from  London  to  Paris,  lost  his  portmanteau  be- 
tween Calais  and  Paris  on  the  Great  Northern  of  France  Railway 
(w).  In  a  recent  case  it  appeared  that  a  Mr.  Burke  had  taken 
from  the  South  Eastern  Railway  Company  a  return  ticket  to 
Paris.  On  the  ticket  was  a  condition  (which  Mr.  Burke  never 
read  or  knew  anything  about)  that  the  company  would  not  be 
responsible  for  anything  happening  off  their  lines.  Mr.  Burke 
was  injured  on  some  French  railway,  which  his  ticket  entitled 
him  to  travel  over  and  he  went  to  law  with  the  South  Eastern 
Railway.  But  it  was  held  that  the  condition,  though  they  had 
not  taken  any  sufficient  steps  to  bring  it  to  the  plaintiff's  notice, 
absolved  them  from  responsibility  (x). 

As  to  when  the  injured  traveller  can  sue  the  company  that  has  gujng  tne 
been  negligent,  instead  of  the  company  that  has  given  him  a  other  corn- 
ticket,  the  recent  cases  of  Foulkes  v.  Metropolitan   Ry.  Co.  (y)  pany. 
and  Hooper  v.  L.  and  N.  W.  Ry.  Co.  (z)  may  be  consulted. 

Other  cases  that  may  be  referred  to  on  the  subject-matter  of  Other  cases. 


(0    Wright  v.   Midland    Ry.  C.  P.  D.  1,  and  see  Wat  kins  v. 

Co.,  L.  R.  8  Ex.  137.  Rymill,  10  Q.  B.  D.  178. 

(u)  Zunz  v.  S.  E.  Ry.  Co.,  L.         (y)  5  C.  P.  D.  157. 
R.  4  Q.  B.  539.  (a)  43  L.  T.  570. 

(*)  Burke  v.  S.  E.  Ry.  Co.,  5 


290  NEGLIGENCE   OP   RAILWAY   COMPANIES. 

this  note  are  Daniel  v.  Met.  Ry.  Co.,  L.  R.  5  H.  L.  45  ;  Birfcett 
v.  Whitehaven  Junction  Ry.  Co.,  4  H.  &  N.  730  ;  Buxton  v.  N, 
E.  Ry.  Co.,  L.  R.  3  Q.  B.  549  ;  Muschamp  v.  Lancaster  and  Pres- 
ton Ry.  Co.,  8  M  &  W.  421 ;  Coxon  v.  G.  W.  Ry.  Co.,  5  H.  &  N. 
274  ;  Wei  by  v.  West  Cornwall  Ry.  Co.,  2  H.  &  N.  703  ;  and  Col- 
lins v.  Brist.  and  Ex.  Ry.  Co.,  29  L.  J.  Ex.  41. 


Person   Employing  Contractor    not  Generally 
Responsible. 


[118.]  QUAEMAN  v.  BURNETT. 

[  6  M.  &  W.  499  (1840).] 

• 

The  defendants  were  a  couple  of  elderly  ladies  resid- 
ing in  Moore  Place,  Lambeth.  They  kept  a  carriage  of 
their  own,  but  neither  horses  nor  coachman,  and  they 
were  in  the  habit  of  hiring  both  from  a  job-mistress 
named  Mortlock.  They  generally  had  the  same  horses, 
and  always  the  same  coachman,  a  steady,  respectable 
person  named  Kemp.  They  paid  him  2s.  a  week,  but  he 
received  regular  wages  from  Miss  Mortlock.  The  man 
had  a  regular  Burnett  livery,  which  he  always  put  on 
when  he  drove  the  elderly  ladies,  and  which  used  to 
hang  up  in  their  hall. 

A  day  or  two  before  Christmas  Day,  1838,  Kemp 
drove  the  Miss  Burnetts  out  as  usual,  and  after  deposit- 
ing them  at  their  door  went  in  himself  to  leave  his 
livery.  He  knew  the  horses  well,  and  trusted  them  to 
stand  still  while  he  was  changing  his  coat.  His  confi- 
dence, however,  was  misplaced.  The  horses  got  fright- 
ened at  something,  and  bolted,  finally  upsetting  the 
plaintiff  and  severely  injuring  him. 

The  question  now  was  whether  Kemp  was  the  ser- 
vant of  the  Burnetts,  so  as  to  make  them  responsible  for 


EMPLOYERS  OF  CONTRACTORS.  291 

what  had  happened,  on  the  principle  respondeat  su- 
perior. Counsel  for  the  plaintiff  made  great  capital  out 
of  the  livery,  the  weekly  payments,  and  similar  circum- 
stances tending  to  show  that  the  defendants  were  the 
domince  pro  tempore  ;  but  in  the  end  it  was  held  that 
they  were  not  liable  (a). 


REEDIE  v.  LONDON  &  NORTH  "WESTERN  [119.] 

RAILWAY  CO. 

[4  Exch.  244  (1849).] 

About  forty  years  ago  the  London  and  North  Western 
Railway  Company,  being  engaged  in  constructing  a 
line  between  Leeds  and  Dewsburg,  agreed  with  some 
contractors  named  Crawshaw  that  the  latter  should 
make  two  miles  of  it  in  a  particular  part.  By  the  terms 
of  this  agreement  the  company  were  to  have  a  general 
right  of  superintending  the  progress  of  the  work,  and 
if  the  contractors  employed  incompetent  workmen,  the 
power  to  dismiss  them.  This  being  the  agreement 
between  the  company  and  the  contractors,  it  happened 
that  Mr.  Reedie  was  one  day  taking  a  quiet  stroll  along 
the  Gromersall  and  Dewsbury  turnpike  road,  and  was 
just  passing  under  one  of  the  company's  viaducts  in  the 
part  of  the  line  which  was  being  done  for  them  by 
Messrs.  Crawshaw  and  Co.,  when  by  the  carelessness  of 
one  of  the  contractors'  workmen  a  big  stone  fell  from 
above  and  killed  him. 

This  action  was  brought  by  the  widow  under  Lord 
Campbell's  Act ;  but  she  was  unsuccessful,  as  the  work- 
man whose  negligence  had  caused  Mr.  Reedie's  death 
was  considered  not  to  be  a  servant  of  the  railway  com- 
pany, notwithstanding  their  power  to  dismiss  him  for 
incompetence. 

(a)  The  same  point  had  been  previously  (in  Laugher  v.  Pointer, 
5  B.  &  C.  547)  fully  discussed,  hut,  through  an  equal  division, 
left  undecided. 


292 


EMPLOYERS    OF    CONTRACTORS. 


Person  em- 
ploying con- 
tractor not 
generally 
liable  for  con- 
tractor's neg- 
ligence. 


Jones  v. 

Liverpool 

Corporation. 


Exceptions. 


Interference. 


To  make  one  person  responsible  for  the  negligence  of  another,  it 
must  be  shown  that  the  relation  of  master  and  servant  subsisted 
between  them. 

"I  apprehend  it  to  be  a  clear  rule,"  said  Willes,  J.,  in  1870, 
"in  ascertaining  who  is  liable  for  the  act  of  a  wrong-doer,  that 
you  must  look  to  the  wrong-doer  himself  or  to  the  first  person  in 
the  ascending  line  who  is  the  employer  and  has  control  over  the 
work.  You  cannot  go  further  back  and  make  the  employer  of 
that  person  liable"  (b). 

Quarman  v.  Burnett  was  followed  in  the  recent  case  of  Jones  v. 
the  Liverpool  Corporation  («),  where  a  person  named  Dean  had 
contracted  with  the  corporation,  as  urban  sanitary  authority,  to 
supply  by  the  day  a  driver  and  horse  foi  their  watering-cart.  In 
an  action  to  recover  damages  for  injuries  caused  by  the  negligent 
conduct  of  the  driver  whilst  in  charge  of  the  cart  it  was  held  that 
the  defendants  were  not  liable. 

A  contractor  exercising  an  independent  employment  is  not  the 
servant  of  the  person  who  engages  his  services,  and  does  not 
make  such  person  liable  for  any  torts  he  or  his  servant  may  com- 
mit (d).  Nor,  again,  is  a  sub-contractor  the  servant  of  the  con- 
tractor who  has  employed  him.  A  railway  company  entered 
into  a  contract  with  A.  to  make  part  of  their  line.  A.  contracted 
with  B.  to  build  a  bridge  in  that  part  of  the  line,  and  B.  in  his 
turn  contracted  with  C.  to  erect  a  scaffold,  which  was  necessary 
for  the  building  of  the  bridge.  Through  the  negligence  of  C.'s 
workmen  somebody  tumbled  against  the  scaffold  and  by  and  by 
brought  an  action  against  B.,  the  builder  of  the  bridge,  for  per- 
sonal injuries.  But  it  was  held  that  he  ought  to  have  sued  C, 
if  anybody  (e). 

There  are,  however,  some  exceptional  cases  in  which  a  person 
employing  a  contractor  is  liable  for  the  contractor's  wrongful 
acts  : — 

1.    Where  the  employer  personally  interferes. 

The  proprietor  of  some  newly-built  houses  had  his  attention 
drawn  by  a  policeman  to  the  fact  that  a  contractor  he  had  em- 
ployed to  make  a  drain  had  left  a  heap  of  gravel  by  the  roadside. 
The  proprietor  said  he  would  get  it  removed  as  soon  as  possible, 
and  paid  a  navvy  to  cart  it  away.  The  navvy  did  not  do  his 
work  thoroughly,  and  a  person  driving  home  was  upset  and  in- 
jured. In  an  action  by  this  person  against  the  proprietor,  Quar- 
man v.  Burnett  (/)  was  cited  for  the  defence,  and  it  was  urged 
that  it  was  the  contractor  who  was  liable.  But  the  proprietor 
was  held  liable,  on  the  ground  that  it  did  not  appear  that  the 
contractor  had  undertaken  to  remove  the  gravel,  and  the  proprie- 
tor had  busied  himself  about  it  (g). 

(b)  Murray  v  Carrie,  L.  E.  6  (e)  Knight  v.  Fox,  5  Ex.  721. 
C.  P.  24.  (/)  6  M.  &  W.  499. 

(c)  14  Q.  B.  D.  890.  (g)  Burgess  v.  Gray,  1  C.  B. 

(d)  Milligan    v.   Wedge,    12  578.' 
Ad.  &  E.  737. 


EMPLOYERS  OF  CONTRACTORS.  293 

2.  Where  ihe  thing  contracted  in  be  done  is  unlawful  Illegality 
A  company,  without  the  special  powers  for  that  purpose  which 

they  ought  to  have  had,  employed  a  contractor  to  open  trenches 
in  the  streets  Sheffield.  The  plaintiff  walking  down  the  street, 
fell  over  a  heap  of  stones  left  there  by  the  contractor,  and  broke 
her  arm.  She  succeeded  iu  getting  damages  out  of  the  company, 
the  distinction  being  clearly  drawn  between  a  contractor  being 
employed  to  do  something  lawful  and  to  do  something  unlaw- 
ful (ft). 

3.  Where  the  thing  contracted   to  he  done  is  perfect/'/   lawful   in  Injurious 
itself,  but  injurious  consequences  must  in  the  natural  course  of  things  consequences 
arise,  unless  effectual  means  to  prevent  them  are  adopted.  not  guarded 

The  defendant  wishing  to  rebuild  his  house,  employed  a  con-  a"ainsr- 
tractor  to  pull  it  down  and  erect  a  new  one.  The  contractor  under-  p"er  v' 
took  the  risk  of  supporting  the  plaintiff's  house  during  the  work, 
and  to  make  good  any  damage  and  satisfy  any  claims  arising 
thereon,  but  the  defendant  was  held  liable  for  injury  to  the 
plaintiff's  house,  caused  by  the  insufficiency  of  the  means  taken 
by  the  contractor  to  support  it  (i). 

The  same  thing  was  held  in  Hughes  v.  Percival  (ft),  which  was  Hughes  v. 
also  a  case  of  dangerous  building  operations.  Percival. 

4.  Where  an  employer  is  bound  by  statute  to  do  a  thing  efficiently,    statutory 

A  railway  company  were  authorised  by  Act  of  Parliament  to  obligation  to 
make  an  opening  bridge  over  a  navigable  river.     They  employed  ('°  tiling 
a  contractor,  and  that  gentleman  ingeniously  made  them  a  bridge  PI0Perly- 
which  wouldn't  open.     The  plaintiff's  vessel  was  in  consequence 
prevented  from  navigating  the  river,  and  the  company  were  held 
responsible  to  him  (I). 

The  following  cases  may  also  be  referred  to  on  the  subject-  Other  cases, 
matter  of  this  note: — Gray  v.  Pullen,  5  B.  &  S.  970;  Glover  v. 
East  Lond.  Waterworks  Co.,  17  L.  T.  475;  Blake  v.  Thirst,  2  H. 
&  C.  20;  Bush  v.  Steinman,  1  B.  &  P.  408;  and  Angus  v.  Dalton, 
6  App.  Ca.  740. 


Responsibility  of  Master  for  Torts  of  Servant. 

LIMPUS  v.  LONDON  GENERAL  OMNIBUS  CO.  [120.] 

[32  L.  J.  Ex.  34  (1862.)] 

"During  the  journey,"' say  the  regulations   of   the 
London  General  Omnibus   Company,  "he  must  drive 

(h)  Ellis  r.  Sheffield  Gas  Con-  (ft)  8  App.  Ca.  443. 

sumers'  Co.,  23  L.  J.,  Q.  B.,  42.  (/)  Hole  v.  Sittingbourne  By. 

CO  Bower  v.  Peate,  1  Q.   B.  Co.,  CH.&N.  488. 
D.  321. 


294  RESPONDEAT   SUPERIOR. 

his  horses  at  a  steady  pace,  endeavouring  as  nearly  as 
possible  to  work  in  conformity  with  the  time  list.  He 
must  not  on  any  account  race  with  or  obstruct  another 
omnibus,  or  hinder  or  annoy  the  driver  or  conductor 
thereof  in  his  business,  whether  such  omnibus  be  one  be- 
longing to  the  company  or  otherwise."  In  defiance  of 
this  excellent  rule,  one  of  the  company's  drivers  be- 
tween Sloane  Street  and  South  Kensington,  obstructed 
and  upset  a  rival  'bus  belonging  to  the  plaintiff.  In 
an  action  for  the  damage  so  done  it  was  urged  for  the 
defendants  that  the  driver  was  acting  contrary  to  his 
orders,  and  therefore  outside  the  scope  of  his  employ- 
ment. This  contention,  however,  was  not  successful, 
for  it  was  held  that  though  the  driver  had  acted  reck- 
lessly and  improperly  and  in  flat  disobedience  to  his 
express  orders,  he  had  acted,  as  he  thought,  for  the 
good  of  his  employers,  and  sufficiently  in  the  course  of 
his  employment  to  make  them  liable. 


[121.]  POULTON  v.  LONDON  &  SOUTH  WESTERN 

RAILWAY  CO. 

[L.  E.  2  Q   B.  534  (1867).] 

Mr.  Poulton,  a  horse  dealer,  took  a  horse  to  the 
Salisbury  Agricultural  Show,  and,  after  winning  any 
number  of  prizes,  returned  with  it  to  Romsey.  When 
he  arrived  at  his  destination  he  gave  up  a  ticket  for 
himself,  and  a  certificate  for  his  horse.  This,  however, 
did  not  satisfy  the  station-master,  who  called  upon  him 
to  pay  6s.  lOd.  for  the  carriage  of  the  horse,  under  a  mis- 
taken notion  that  it  could  not  be  carried  free  by  that 
train.  Poulton  refused  to  pay  this  sum,  and  was  con- 
sequently arrested  by  a  couple  of  policemen  acting  un- 
der the  station-master's  orders,  and  detained  in  cus- 
tody till  it  was  found  by  telegraphing  that  Poulton  was 
right  and  the  station-master  wrong. 


RESPONDEAT    SUPERIOR.  295 

The  injured  horse  dealer  now  brought  an  action 
against  the  railway  company  for  false  imprisonment,  but 
was  bowled  over  on  a  point  of  law.  They  successfully 
answered  his  claim  by  saying  that,  as  they  themselves 
would  have  had  no  right  to  apprehend  the  plaintiff  for  not 
paying  his  horse's  fare,  so  their  servant  the  station-mas- 
ter could  have  had  no  implied  authority  from  them  to  do 
what  he  did. 

In  order  that  a  master  may  be  responsible  for  a  tort  committed  General  rule, 
by  his  servant,  the  latter  must  in  general  have  been  acting  in  the 
course  of  his  regular  employment.     If  while  driving  me,  or  driving 
on  my  business,  my  servant  negligently  injures  a  person,  I  am 
clearly  liable.     So  am  I  even  if  the  accident  occurs  while  the  ser-  Temporary 
vant  is  temporarily  deviating  for  a  purpose  of  hisown.     A  contrac-  deviation, 
tor  gave  strict  orders  to  his  workmen  that  they  were  not  to  leave 
their  horses,  or  to  go  home  during  the  dinner  hour.     One  of  them 
however,  disobeyed  these  orders,  and  went  home  to  his  dinner  a 
quarter  of  a  mile  off,  leaving.his  cart  and  horse  standing  unattend- 
ed outside.     They  ran  away,  and  injured  the  plaintiff's  railings. 
The  man's  master  was  held  responsible,  on  the  ground  that  the 
workingman  teas  acting  within  the  general  scope  of  his  authority  to 
conduct  the  horse  and  cart  during  the  day  (m). 

But  if  the  enterprise  is  entirely  the  servant's — if,  for  instance,  he  Total  devia- 
takes  his  master's  carriage  without  leave  for  purposes  entirely  his  tion. 
own — the  master  is  not  responsible.  One  May  Saturday  in  1869 
a  city  wine  merchant  sent  a  clerk  and  carman  with  a  horse  and 
cart  to  deliver  wine,  at  Blackheath,  and  to  bring  back  a  quantity 
of  empty  bottles  to  the  offices,  which  were  the  Minories.  On  the 
homeward  journey,  after  crossing  London  Bridge,  they  should  have 
turned  to  the  right;  instead  of-  that  they  turned  to  the  left,  and  went  in 
the  opposite  direction  on  some  private  matter  of  the  clerk's.  While 
thus  going  quite  against  their  orders,  they  ran  over  a  child.  It 
was  held  that  the  city  wine-merchant  was  not  responsible  (/()• 

It  is  obvious,  however,  that  these  two  cases  run  somewhat  fine. 

A  recent  case  on  this  subject  is  Stevens  v.  Woodward  (o).     The  The  clerk 
plaintiff's  were  the  well-known  law  publishers  carrying  on  busi-  who  left  the 
ness  at  119,  Chancery  Lane,  and  the  defendants  were  some  solic-  ""'ater  run- 
itors  occupying  premises  over  their  shop.     In  the  private  room        "' 
of  one  of  the  defendents  was  a  lavatory,  which  the  clerks  had  clear 
instructions  never  to  use.     One  afternoon,  however,  after  this  gen- 

(m)  Whatman  v.  Pearson,  L.  Q.  B.  476,  and  see  Wilson  v. 
R.  3  C.  P.   i±>.  Owens,  16  L.  R.  Q.  225. 

(m)  Storey  v.  Ashton,  L.  R.  4         (o)  6  Q.  B.  D.  318. 


Cabby. 


29G  KKSPONDEAT    SUPERIOR. 

tleman  had  left,  a  disobedient  clerk,  tbinking  no  one  would  ever 
know,  went  into  tberoom  to  wash  bis  bands.  "  I turned  the  tap," 
tbe  young  man  afterwards  said  in  evidence,  "and  the  water  did 
not  flow;  and  then  I  went  out.'"  But  after  tbe  youtb  badgoneout, 
the  water  did  llow,  and  flowed  so  abundently  tbat  a  large  num- 
ber of  treatises  of  Messrs.  Stevens  and  Sons  down  below  were 
spoilt.  In  an  action  against  tbe  solicitors  for  tbe  mischief  thus 
inflicted,  it  was  held  that  tbe  act  of  the  clerk  was  not  within  the 
scope  of  his  authority,  or  incident  to  tbe  ordinary  duties  of  his 
employment,  and  therefore  bis  masters  were  not  liable.  "  Tlie 
clerk, ' '  said  Lindley,  J. ,  "  was  a  trespasser  after  his  master  had  left. ' ' 
Was  be  ser-  The  point,  of  course,  is  often  taken  for  the  defence  in  cases  of 
vant?  this  kind  tbat  the  person  causing  the  mischief  was  not  the  defen- 

dant's servant  so  as  to  make  him  liable.  An  important  class  of 
such  cases  are  those  in  which  it  is  sought  to  make  the  proprietor 
of  a  cab  liable  for  tbe  negligence  of  the  driver.  Strictly,  where 
the  driver  has  hired  the  cab  from  its  owner  for  a  fixed  sum,  tbe 
relation  between  tbe  parties  is  that  of  bailor  and  bailee,  but  it 
has  been  held  that  the  effect  of  the  Acts  of  Parliment  regulating 
cabs  is,  in  tbe  interests  of  the  public,  to  render  tbe  proprietor  re- 
sponsible for  the  torts  of  the  driver.  Thus,  in  the  case  of  a  cab 
proprietor  who  let  out  a  cab  and  horses  by  tbe  day,  the  amount 
paid  for  hire  being  independent  oi  the  cabman's  earnings,  where 
through  the  negligence  of  the  latter  his  fare  found  himself  minus 
his  luggage,  the  proprietor  was  held  responsible  (p).  And  in  tbe 
more  recent  case  of  Venables  v.  Smith  (q),  the  arrangement  be- 
tween the  parties  being  tbe  same  as  in  Powles  v.  Hider,  it  was 
held  that  the  proprietor  of  the  cab  was  responsible  to  tbe  plaintiff 
King  v.  for  a  drunken  driver's  running  him  down.     But  in  a  later  case 

Spurr.  than  either  of  tbe  above  it  has  been  held  that  where  tbe  driver 

hired  a  cab,  and  himself  jwovided  the  horse  and  harness,  the  owner 
of  the  cab  was  not  answerable  for  tbe  consequences  of  the  driver's 
Master  of        negligence  (r).     In  Steel  v.  Lester  (s)  the  action  was  brought  by 
ship  having     tbe  owner  of  a  wharf  at  Spalding  for  injury  done  to  his  wharf 
share  of  y,y  a  sio0p,  which  through  tbe  negligence  of  her  master,  a  man 

Pro    s'  named  Lilee,  had  broken  loose  from  her  moorings.     The  sloop 

really  belonged  to  Lester,  and  he  was  registered  as  the  owner;  but 
Lilee  did  not  merely  act  as  hired  servant :  there  was  an  agree- 
ment between  them  by  which  Lilee  not  only  had  complete  con- 
trol over  the  vessel,  but  pocketed  two-thirds  of  tbe  net  profits. 
In  spite  of  this  agreement  it  was  held  that  Mr.  Lester  must  pay 
for  tbe  mending  of  Mr.  Steel's  wharf.     In  Lucas   t;.Mason  (t), 

(jp)Powels«.  Hider,6El.  &B1.  (r)   King  v.  Spurr,  8QB.D. 

207;  and  see  Fowler  r.  Lock,  L.  104. 

R.  7  C.  P.  275.  (s)  3  C.  P.  D.  121 

{q)  2  Q.  B.  D9.  27.  (t)  L.  R.  10  Ex.  251. 


RESPONDEAT    SUPERIOR.  297 

decided  rather  earlier  than  the  two  cases  just  referred  to,  the  Xoisy 
action  was  by  a  man  who  had  been  turned  out  of  a  Church  churchmen. 
Liberation  Association  meeting  in  Lancashire  against  the  chair- 
man, who  had  said,  "I  shall  be  obliged  to  bring  those  men  to  the 
front  ivho  arc  making  the  disturbance.  Bring  those  men  to  the  front. ' ' 
It  was  held  that  there  was  not  the  ordinary  relation  of  master 
and  servant  here,  and  that  the  chairman  was  not  responsible. 

A  man  is  not  answerable  for  the  tortious  acts  of  his  servant  Lending 
whom  he  has  lent  to  another,  committed  while  in  the  service  of  that  servants, 
other.     This  was  held  in  a  case  in  which  some  colliery  proprie- 
tors had  agreed  with  a  Mr.  Roger  Whittle  that  he  should  do  some 
sinking  and  excavating  for  them,  and  that  they  should  place  cer- 
tain of  their  servants  under  his  entire  control.     One  of  these  ser- 
vants, an  engineer  named  Lawrence,  fell  asleep  when  he  ought    - 
to  have  been  particularly  wide  awake.     It  was  held  that  the 
plaintiff,  who  had  suffered  injury  in  consequence,  could  not  main- 
tain an  action  against  the  colliery  proprietors,  because,  though 
the  engineer  remained  their  general  servant,  yet  he  was  acting 
as  "Whittle's  servant  at  the  time  of  the  accident  (?c). 

A  master  is  never  responsible  for  the  wilful  and  malicious  act  of  Wilful  and 
his  servant,  even  while  acting  in  his  employment.     If,  for  exam-  malicious 
pie,  a  driver  were  to  lose  his  temper,  and,  out  of  angry  feeling,  ac  s,°   ser" 
were  to  drive  his  master's  carriage  against  another  carriage,  and 
so  bring  about  an  accident,  the  master  would  not  be  responsible. 
As   Lord   Kenyon  said  in  a   well-known   case  on  the   subject : 
"  When  a  servant  quits  sight  of  the  object  for  which  he  is  em- 
ployed, and  without  having  in  view  his  master's  orders  pursues 
that  which  his  own  malice  suggests,  he  no  longer  acts  in  pursu- 
ance of  the  authority  given  him,  and  his  master  will  not  be  lia- 
ble for  such  act  (.v). 

It  is  scarcely  necessary  to  say  that  a  man  is  not  liable  crimi-  crime  of  ser- 
nalhj  for  the  acts  of  his  servants  (?/).  vant. 

A  person  who  puts,  another  in  his  place  to  do  a  class  of  acts  in 
his  absence  necessarily  leaves  him  to  determine,  according  to  the 
circumstances  which  arise,  when  an  act  of  that  class  is  to  be  done, 
and  trusts  him  for  the  manner  in  which  it  is  done.  Thus,  in  an 
action  for  assault,  a  railway  company  was  held  liable  for  the  vio- 
lence of  a  porter  who  roughly  pulled  a  passenger  out  of  a  carriage 
because  he  thought  that  it  was  the  wrong  compartment  (z).  And 
where  the  superintendent  at  a  railway  station  without  reasonable 
cause  gave  a  passenger  into  custody  for  travelling  without  a  ticket, 

(m)  Rourke  ?•.  White  Moss  Col-  D.  42. 

liery  Co.,  2  C.  P.  D.  205,  and  see  (z)  Bayley  v.  The  Manchester, 

Jones  r.  Corporation  of  Liver-  Sheffield  and  Lincolnshire  Ry. 

pool,  14  Q.  B.  D.  890.  Co.,  L.  R.  7  C.  P.  415,  and  8C. 

(x)  Macmanus  v.   Cricket,   1  P.    148  ;   see   also   Seymour   v. 

East,  106.  Greenwood,  7  H.  &  N.  355. 

0)  Reg.  v.  Holbrook,  4  Q.  B. 


298  RESPONDEAT  SUPERIOR — RUINOUS  PREMISES. 

and  an  Act  of  Parliament  authorised  this  to  he  done  in  the  case 
of  passengers  travelling  without  having  paid  their  fare,  the  com- 
pany was  held  liahle  (a).  But  it  is  not  within  the  ordinary  scope 
of  a  bank  manager's  authority  to  order  the  arrest  or  prosecution 
of  offenders  (6),  nor  has  the  booking-clerk  of  a  railway  company 
authority  to  give  into  custody  a  person  whom  he  suspects  of  at- 
tempting to  rob  the  till,  after  the  attempt  has  ceased  (e).  Simi- 
larly a  railway  porter  left  in  charge  of  a  station  does  not  render 
the  company  liable  in  an  action  for  false  imprisonment  when  he 
gives  an  innocent  person  into  custody  on  the  charge  of  stealing 
the  company's  property  (d).  "There  seems  no  ground  for  say- 
ing," remarked  Keating,  J.,  "  that  what  was  done  was  in  the 
ordinary  course  of  the  business  of  the  company,  nor  that  it  was 
for  their  benefit,  except  in  so  far  as  it  is  for  the  benefit  of  all  the 
Queen's  subjects  that  a  criminal  should  be  convicted."  In  the 
,  recent  case  of  Richards  v.  The  West  Middlesex  Waterworks  Com- 
pany (e),  it  was  held  that  a  bailiff  who  committed  an  unneces- 
sary assault  in  levying  a  distress  was  not  acting  within  the  scope 
of  his  authority  and  did  not  make  his  employers  responsible.  See 
also  Furlong  v.  South  London  Tramways  Co.,  1  C.  &  E.  316. 


Ruinous  Premises. 


[122.]  TODD  r.  FLIG-HT. 

[9  C.  B.  N.  S.  377  (I860).] 

Flight  bought  a  shaky  old  house  next  door  to  the  plain- 
tiff's chapel,  and  let  it  to  a  tenant.  By  and  by  the  house 
tumbled  down  on  the  chapel,  and  did  it  the  mischief  in 
respect  of  which  this  action  was  brought.  Mr.  Flight's 
answer  to  the  claim  was — "The  occupier,  my  tenant,  is 
responsible  ;  not  I,  the  innocent  reversioner."  But  it 
was-  held  that,  as  Flight  had  let  the  house  when  he 

(a)  Goff  v.  The  Great  North-    270. 

em  Ry.  Co.,  3  E.  &  E.  672  ;  see  (c)  Allen  v.  The  London  and 

also  Moore  v.  The  Metropolitan  South  Western  Ry.  Co.,  L.   R. 

Ry.  Co.,  L.  R.  8  Q.  B.  36,  and  6  Q.  B.  65. 

Edwards  v.  Midland  Ry.  Co.,  6  (d)  Edwards  v.  The  London 

Q.  B.  D.  287.  and  North  Western  Ry.  Co.,  L. 

(b)  Bank  of  New  South  Wales  R.  5  C.  P.  445. 

v.  Owston,   L.  R.   4  App.   Cas.         (e)  15  Q.  B.  D.  660. 


KUINOUS    PREMISES.  299 

knew  the  chimneys  to  be  in  a  very  dangerous  condition, 
and  as  the  building  had  fallen  by  the  laws  of  nature  and 
not  through  the  default  of  the  tenant,  it  was  he  who 
must  pay. 

The  general  rule  is  that  the  occupier,  not  the  landlord,   is  re-  Occupier 

sponsible  for  any  injury  happening  to  a  third  person  through  generally 

premises  being  out  of  repair.     Thus,  in  Tarry  v.  Ashton  (/),  it  liable. 

Avasheld  that  an  occupier  in  the  Strand  who  had  a  lamp  project-  The  rotten 

ing  several  feet  across  the  pavement  was  bound  to  keep  it  in  re-  *\imV  ln  tne 

.  •  otranu. 

pair  so  as  not  to  be  dangerous  to  persons  passing  along  the  street, 

and  was  liable  for  damage  done  to  an  old  woman  on  whom  it  fell 
through  want  ot  repair,  notwithstanding  that  he  had  employed 
a  competent  contractor  to  put  it  right.     "There  are  only  two  Lari(iior(i 
ways,"  said  the  court,  in  a  recent  case  (g),  where  an  insufficiently  liable  in  only 
fastened  chimney-pot  got  dislodged  by  a  high  wind  and  extin-  two  cases, 
guished  somebody,  "in  which  landlords  or  owners  can  be  made 
liable  in  the  case  of  an  injury  to  a  stranger  by  the  defective  re- 
pair of  premises  let  to  a  tenant,  the  occupier,  and  the  occupier  alone, 
being  prima  facie  liable  :  first,  in  the  case  of  a  contract  by  the  land- 
lord to  do  the  repairs,  where  the  tenant  can  sue  him  for  not  repair- 
ing; secondly,  in  the  case  of  a  misfeasance  by  the  landlord,   as, 
for  instance,  where  he  lets  premises  in  a  ruinous  condition." 

But  a  landlord  is  liable  who  lets  land  with  a  continuous  nui-  Letting  land 
sance  upon  it  which  he  takes  no  steps  to  remove  ;  e.g.,  with  an  with  nui- 
obstructive  wall  (h),  or  a  stinking  privy  (/).     He  is  not  liable,  sance. 
however,  for  a  nuisance  occasioned  by  the  particular  use  to  which  Nuisance 

the  occupiers  choose  to  put  the  premises  (k),  unless,  indeed,  the  crea  e5     ^ 
1  r  i  \  11  occupier. 

nuisance  arises  naturally  and  of  necessity  from  the  use  of  the 
premises  as  contemplated  by  the  demise  (/). 

Where  the  servant  of  the  defendant  causes  the  nuisance  in  the  Whiteley  v. 
course  of  his  employment,  the  defendant  maybe  liable,  thougn  Pepper, 
neither  occupier  nor  landlord  ;  e.g.,  where  the  carman  of  a  coal 
merchant  delivering  coals  at  a  customer's  removed  an  iron  plate 
in  the  footway  without  taking  proper  precautions  against  acci- 
dents (m). 

The  following  cases  may  also  be  consulted: — Pretty  v.  Bick-  Other  cases, 
more,  L.  E.  8  C.  P.  401  ;  Gwinnell  v.  Earner,  L.  R.  10  C.  P.  658; 
Payne  v.  Rogers,  2  PI.  Bl.  349  ;  Russell  v.  Shenton,  3  Q.  B.  449  ; 
White  v.  Jameson,  L.   E.  18  Eq.   303  ;  and  Bishop  v.   Bedford 
Charity,  1  E.  &  E.  697. 

(f)  1  Q.  B.  D.  314.  (k)  Rich  v.  Basterfield,   9  L. 

(g)  Nelson  v.  Liverpool  Brew-     T.  356. 

erv  Co.,  2  C.  P.  D.  311.  (1)  Harris  v.  James,  35  L.  T. 

(h)  Rosewell  v.  Prior,  2  Salk.  240. 
459.  (m)  Whiteley  v.  Pepper,  2  Q. 

(0  R.  v.  Pedly,  1  A.  &E.  822.  B.  D.  276. 


300  NEGLIGENT    KEEPING    OF   FIRE. 


Damage  from  Sparks  of  Railway  Engines. 


[123.]  VAUGHAN  v.  TAFF  VALE  RAIL W AY  CO. 

[.->  JT.  &  X.  079  (I860).] 

A  quarter  of  a  century  ago  Mr.  Yaughan  was  the  pro- 
prietor of  a  plantation  adjoining  the  embankment  of  the 
Taff  Vale  Railway  Company.  The  grass  growing  in  the 
plantation  was  of  a  vory  combustible  nature,  and  so  were 
some  dry  branches.  In  fact  the  whole  was  graphically 
described  by  the  plaintiff  himself  as  being  "in  just 
about  as  safe  a  state  as  an  open  barrel  of  gunpowder 
would  be  in  the  Cyfarttfa  Rolling-mill."  One  day  this 
susceptible  plantation  was  discovered  to  be  on  fire,  and 
eight  acres  of  it  were  burnt.  It  was  not  disputed  that 
it  had  taken  fire  from  a  spark  from  one  of  the  defend- 
ants' engines,  but  they  contended,  and  it  was  decided, 
that  they  were  not  responsible,  as  they  icere  authorised 
to  use  such  engines,  and  had  adopted  every  precaution 
that  science  could  suggest  to  prevent  injury. 

Train  In  the  earlier  case  of  R.  v.  Pease  (n)  it  had  been  derided  that  a 

frightening     railway  company  authorised  by  statute  to  use  locomotive  engines 
horses.  are  not  indictable  for  a  nuisance   if  their  engines  frighten  the 

horses  of  persons  travelling  along  a  highway  running  paraHel  to 
the  line.  "The  legislature,"  said  the  court,  "  must  be  presumed 
to  have  known  that  the  railroad  would  be  adjacent  tor  a  mile  to 
the  public  highway,  and  consequently  that  travellers  upon  the 
highway  would  be  in  all  probability  incommoded  by  the  passage 
of  locomotive  engines  along  the  railroad.  That  being  presumed, 
there  is  nothing  unreasonable  or  inconsistent  in  supposing  that 
the  legislature  intended  that  the  part  of  the  public  which  should 
use  the  highway  should  sustain  some  inconvenience  for  the  sake 
of  the  greater  good  to  be  obtained  by  other  parts  of  the  public  in 
the  more  speedy  travelling  and  conveyance  of  merchandise  along 
the  new  railroad." 

(n)  4  B.  &  Ad.  30,  and  see  Lea  Conservancy  Board  v.  Mayor  of 
Hertford  and  others,  1  C.  &  E.  299. 


NEGLIGENT  KEEPING  OF  FIRE.  301 

The  leading  case  and  the  one  just  referred  to  were  both  ap-  The  vibration 
proved  in  the  great  case  of  the  Hammersmith  Railway  Company  case. 
v.  Brand  (o),  where  it  was  held  that  the  Lands  Clauses  Consolida- 
tion Act,  and  the  Railways  Clauses  Consolidation  Act,  do  not 
contain  any  provisions  under  which  a  person,  whose  land  has  not 
been  taken  for  the  purposes  of  a  railway,  can  recover  statutory 
compensation  from  the  railway  company  in  respect  of  damage  or 
annoyance  arising  from  vibration  occasioned  (without  negligence) 
by  the  passing  of  trains,  after  the  railway  is  brought  into  use, 
even  though  the  value  of  the  property  has  been  actually  depre- 
ciated thereby. 

The  recent  case  of  the  London,  Brighton  and  South  Coast  Rail-  Truman's 
way  Company  v.  Truman  (p),  is  to  the  same  effect.  The  occu-  case- 
piers  of  the  houses  near  the  East  Croydon  Station  were  very  much 
annoyed  by  the  noise  made  by  cattle  and  drovers  brought  on 
to  the  land  of  the  railway  company,  but  it  was  held  that  the 
company  were  protected  by  their  Act  against  legal  proceedings 
for  a  nuisance.  The  Vaughan,  Tease,  and  Brand  cases  were  fol- 
lowed, and  the  Hill  case  was  distinguished.  "I  think  it  is 
enough,"  said  Lord  Halsbury,  L.C.,  referring  to  the  last  men- 
tioned case,  "in  discussing  that  case  to  say  that  the  ground 
of  the  decision  was  one  which  distinguished  it  from  the  present 
by  reason  of  the  very  nature  of  the  enactment  which  Avas  then 
under  discussion.  The  Railway  Acts,  treated  as  a  well-known 
and  recognised  class  of  legislation,  were  expressly  and  carefully 
distinguished  from  the  permissive  character  of  the  legislation 
which  your  lordships  were  then  construing.  Broadly  stated,  the 
distinction  taken  amounted  to  this,  that  a  small-pox  hospital 
might  be  built  and  maintained  if  it  could  be  done  without  creat- 
ing a  nuisance,  whereas  the  Railway  Acts  were  assumed  to 
establish  the  proposition  that  the  railway  might  be  made  and 
used  whether  a  nuisance  were  created  or  not." 

On  the  other  hand,  if  a  company  have  been  guilty  of  negli-  Negligence, 
gence — indeed,  if  they  have  not  adopted  the  latest  appliances  to 
prevent  danger — their  statutory  authority  will  not  help  them  (q). 
An  important  case  decided  about  fifteen  years  ago  is  Smith  v.  The 
L.  and  S.  W.  Ry.  Co.  (r).  In  the  middle  of  a  hot  summer  some 
workmen  of  the  company,  who  had  been  cutting  the  grass  and 
trimming  the  hedges  by  the  side  of  the  line,  left  the  trimmings 
and  stuff  lying  about  in  heaps,  instead  of  carting  them  all  away. 
After  the  heaps  had  been  there  a  fortnight,  they  were  one  day — 
presumably  from  the  sparks  of  an  engine  of  the  company  that 

(o)  L.  R.  4  H.  L.  171.  W.  Ry.  Co.,  10   C.    B.,    N.  S., 

(p)  11  App.  Ca.  45.     But  see  89;  and   see   Geddes    ».    Bann 

R.  v.  Essex,  14  Q.   B.    D.   753,  Reservoir,  3  App.  Ca.  430,  and 

and  Gas  Light  Co.   v.  St.  Mary  Brine  v.   G.  W.    Ry.  Co.,  31  L. 

Abbotts,  15  Q.  B.  D.  1.  J..  Q.  B.,  101. 

{q)  Fremantle   v.  L.  and   N.  (r)  L.  R.  6  C.  P.  14. 
21   COMMON   LAW. 


302 


NEGLIGENT    KEEPING    OF    FIRE. 


\'<>  statutory 
authority. 


Statutory 
authority, 
but  common 
law  rights 
reserved. 
Small -pox 
hospitals. 
Traction 
engines. 


( )ther  cases. 


House  on  fire. 


Vaughan 
Menlove. 


had  just  gone  by — discovered  to  he  on  fire.  The  fire  was  fanned 
by  a  high  wind,  and  finally  burnt  down  the  cottage  of  Smith,  two 
hundred  yards  off.  It  was  held  that  the  defendants,  though  their 
engines  were  of  the  best  possible  construction,  were  responsible 
for  the  damage  thus  done.  So  it  has  been  held  to  be  actionable 
negligence  to  blow  off  steam  at  a  level  crossing  (s,\ 

Moreover,  if  persons  are  not  authorised  by  statute  to  run  loco- 
motive engines,  and  yet  do  so,  they  are  liable  for  injuries  result- 
ing, though  negligence  is  expressly  negatived  (t).  This  is  on  the 
principle  of  Fletcher  v.  Rylands  («),  viz.,  that  when  a  man  brings 
or  uses  a  thing  of  a  dangerous  nature  on  his  own  land,  he  must 
keep  it  in  at  his  own  peril. 

Further,  where  by  statute  a  thing  is  permitted,  not  directed,  to 
be  done,  it  is  not  in  general  to  be  inferred  that  the  right  of  action 
is  taken  away  for  a  nuisance  caused  by  the  doing  of  such  thing, 
even  if  such  nuisance  is  not  due  to  any  negligence  in  the  manner 
of  the  doing  it.  In  virtue  of  this  principle,  some  property 
owners  at  Hampstead  a  few  years  ago  managed  to  kick  out  a 
small-pox  hospital  from  their  neighbourhood  (or),  and  a  farmer 
down  in  Wiltshire  got  damages  out  of  the  owner  of  a  traction 
engine,  the  sparks  from  which  had  in  some  unaccountable  way 
set  on  fire  one  of  his  stacks.  "It  is  hardly  contended,"  said 
Baggallay,  L.J.,  "that  the  defendant  isnot  liable  at  common  law; 
but  section  5  of  the  Locomotive  Act,  1865,  is  relied  upon  as  afford- 
ing a  defence.  But  I  think  it  quite  clear  that  the  right  at  com- 
mon law  is  preserved  by  section  12." 

The  following  cases  may  also  be  referred  to  as  to  injuries  re- 
sulting from  the  exercise  of  statutory  powers: — Cator  v.  Lewis- 
ham  Board  of  Works,  5  B.  &  S.  115;  Lawrence  v.  G.  N.  Ry.  Co., 
16  Q.  B.  653;  Fleming  v.  Manchester  Corporation,  44  L.  T.  517; 
Brownlow  v.  Metr.  Board,  31  L.  J.  C.  P.  140;  Manley  v.  St. 
Helens,  &c,  Co.,  2  H.  &  N.  840;  and  Milnes  v.  Huddersfield,  10 
Q.  B.  D.  124. 

The  law  was  formerly  much  stricter  about  the  safe  keeping  of 
fire  than  it  is  now.  A  man  was  responsible  for  an  accidental  fire 
which  broke  out  on  his  premises  and  burnt  his  neighbour's  house. 
And  in  days  when  houses  were  mostly  made  of  Avood  it  was  quite 
right  to  be  strict.  But  by  14  Geo.  III.  c.  78  (the  Building  Act) 
it  was  provided  that  "no  action  should  lie  against  any  person  in 
whose  house,  chamber,  stable,  barn,  or  other  building,  or  on 
whose  estate  any  fire  should  .  .  .  accidentally  begin"  (y).  A 
case  of  some  celebrity  on  the  subject  is  Vaughan  v.  Menlove  (z). 


(s)  Manchester  South  Junc- 
tion Ry.  Co.  v.  Fullarton,  14  C. 
B.,  N.S.,  54. 

(t)  Jones  v.  FestiniogRy.Co., 
L.  R.  3  Q.  B.  733. 

(m)  See  p.  255. 


(x)  Metr.  Asvlum  District  v. 
Hill,  6  App.  Ca.  193;  and  see 
Vernon  v.  Vestry  of  St.  James, 
16  Ch.  D.  449. 

(y)  Sec.  86. 

(s)  3Bing.,  N.  C.  468. 


SUPPORT    FROM    NEIGHBOURING    LAND.  30-3 

A  farmer  in  Shropshire  had  a  hayrick  in  a  highly  dangerous  con- 
dition. It  smoked,  and  steamed,  and  showed  unmistakeable 
signs  of  being  about  to  take  fire.  To  the  advice  and  remon- 
strances of  his  neighbors  who  pointed  out  its  condition  all  the 
answer  the  farmer  vouchsafed  was,  "  Oh,  nonsense  !  I'll  chance 
it.  "  Finally,  indeed,  he  did  take  a  kind  of  precaution  ;  he 
made  a  chimney  through  the  rick  ;  which,  though  done  with 
good  intentions,  was  scarcely  wise.  The  rick  took  fire,  and  burnt 
the  plaintiff's  cottages  in  the  next  field.  For  this  damage  the 
farmer  was  held  responsible.  "The  care  taken  by  a  prudent 
man,  "  said  Tindal,  C.  J.,  "has  always  been  the  rule  laid  down  ; 
and  as  to  the  supposed  difficulty  of  applying  it,  a  jury  has  always 
been  able  to  say  whether,  taking  that  rule  as  their  guide,  there 
has  been  negligence  on  the  occasion  in  question." 

A  master  is  responsible  (in  spite  of  12  Geo.  III.  c.  73,  c.  35,  Fires  caused 
which  inijioses  penalties  on  them)  for  fires  negligently  caused  by  by  servants, 
his  servants  whilst  carrying  into  effect  their  master's  orders  (a). 
But  in  Williams  v.  Jones  (b)  a  master  was  held  not  liable  for  a 
fire  caused  by  the  negligent  use  of  a  pipe  by  his  servant,  because 
fire  had  no  kind  of  connection  with  the  work  the  man  was  en- 
gaged on  ;  and  a  similar  view  was  taken  in  another  case  (c), 
where  a  maidservant,  whose  business  was  simply  to  light  a  fire, 
took  it  into  her  head  to  clear  the  chimney  of  soot  by  setting 
it  on  fire,  and  burnt  the  whole  place  down. 


Support  from  Neighbouring  Land. 

SMITH  v.  THACKERAH. 
[L.  R.  1  C.  P.  564  (1866).] 

Mr.  Smith  having  built  a  wall  close  to  the  edge  of 
his  land,  his  neighbour,  Mr.  Thackerah,  proceeded  to 
dig  a  well  on  his  own  land,  but  within  a  few  feet  of 
the  wall.  The  consequence  was,  down  went  Smith's 
wall.  Smith  now  went  to  law  for  the  injury  done  to 
his  wall,  but,  as  it  appeared  that,  if  there  had  been  no 

(a)  Tubervil  v.  Stamp,  1  Salk.  of   the   majority    of   the    Ex- 

13.  chequer  Chamber. 

(6)  3  H.  &  C.  602.     Justices  (c)  McKenzie  v.  McLeod,  10 

Blackburn    and   Mellor,    how-  Bing.  385. 
ever,  dissented  from  the  view 


[124.] 


SU4: 


SUPPORT    FROM    NEIGHBOURING    LAND. 


building  on  Smith's  land,  he  would  have  suffered  no 
appreciable  damage  by  Thackerah's  proceedings,  it  was 
held  that  lie  had  no  right  of  action. 


Sic  ntcre  tuo. 


Unweighted 
by  buildings. 


Brown  v, 
Robins. 


Angus  v. 
Dalton. 


Every  man  must  so  use  his  own  property  as  not  to  injure  his 
neighbour's.  In  virtue  of  this  principle  an  owner  of  land  is  en- 
titled to  require  that  his  neighbor,  whether  he  be  the  owner  of 
the  subjacent  soil  or  of  the  adjacent  land,  shall  not  so  treat  it  as 
to  deprive  him  of  due  support.  This  right,  however,  exists  only 
in  favour  of  land  unweighted  by  buildings,  that  is  to  say,  of 
land  in  its  natural  state.  The  most  obvious  common  sense  dic- 
tates that  a  person  has  no  business  to  load  his  own  soil  with 
buildings  in  such  a  way  as  to  make  it  require  the  support  of  his 
neighbour's  land.  Such  rights  to  support,  however,  may  be  ac- 
quired by  grant  or  prescription.  This  grant  may  be  implied. 
For  example,  when  one  man  sells  (another)  part  of  his  land  for 
building  purposes,  he  impliedly  grants  sufficient  lateral  support 
from  his  adjacent  land  for  such  buildings.  He  would  not  be 
allowed,  for  instance,  to  work  mines  dangerously  near  them  (d). 
And,  even  if  there  is  no  such  easement  by  grant  or  prescription, 
yet,  if  the  damage  done  to  the  dominant  land  is  so  considerable 
as  to  be  actionable,  damages  may  be  recovered  for  injury  sus- 
tained by  recently  erected  buildings.  *'The  moment  the  jury 
found,  "  said  Pollock,  C.  B.,  in  Brown  v.  Robins  (c),  "that  the 
subsidence  of  the  land  was  not  caused  by  the  weight  of  the 
superincumbent  buildings,  the  existence  of  the  house  became 
unimportant  in  considering  the  question  of  the  defendant's  lia- 
bility. It  is  as  if  a  mere  model  stood  there,  the  weight  of  which 
bore  so  small  a  proportion  to  that  of  the  soil  as  practically  to  add 
nothing  to  it."  Thus,  if  in  Smith  v.  Thaclerah  it  had  appeared 
that  Smith's  land  in  its  natural  state  would  have  suffered  ap- 
preciable damage  by  Thackerah's  well,  Smith  would  have  been 
entitled  to  claim  compensation  for  the  injury  occasioned  to  his 
wall. 

The  recent  case  of  Angus  r.  Dalton  (/)  is  very  important  on 
this  branch  of  the  law.  The  action  (originally  tried  before  Lush, 
J.,  at  the  Newcastle  summer  assizes,  1876)  was  brought  for  dam- 
ages in  respect  of  injuries  to  the  plaintiff's  coach  factory  by 
pulling  down  the  adjoining  house.  After  a  dreadful  amount  of 
litigation,  the  plaintiff  was  successful  ;  it  being  held  that  a  right 
to  lateral  support  from  adjoining  land  may  be  acquired  by  twenty 
years'  uninterrupted  enjoyment  for  a  building  proved  to  have 
been  newly  built,  or  altered  so  as  to  increase  the  lateral  pressure, 


(d)  Elliot  v.  N.  E.  Ry.  Co., 
10  H.  L.  C.  ;  and  see  Siddons 
v.  Short,  2  C.  P.  D. 


(e)  4  H.  &  N.  186. 
(/)  6  App.  Ca.  740. 


SUPPORT  FROM  NEIGHBOURING  LAND.  305 

at  the  beginning  of  that  time,  and  that  it  is  so  acquired  if  the  en- 
joyment is  peaceable  and  without  deception  or  concealment,  and 
so  open  that  it  must  be  known  that  some  support  is  being  en- 
joyed by  the  building. 

But,  as  between  adjoining  houses,  the  general  rule  is  that  there  Adjoining 
is  110  obligation  toicards  an  eighbour  cad  by  law  on  the  owner  of  a  houses. 
house,  merely  as  sucfi,  to  keep  it  standing  and  in  repair :  all  he  is 
bound  to  do  is  to  prevent  its  becoming  a  nuisance  and  falling  on 
to  his  neighbour's  house  (g).  Cut  a  right  to  support  of  the  kind 
may  be  gained  by  grant,  express  or  implied.  Where,  for  in- 
stance, two  houses  are  built  by  the  same  man,  and  depend  on 
one  another's  support,  there  remains  a  mutual  right  to  support 
after  they  have  passed  into  the  hands  of  different  owners  (h). 

It  is  to  be  observed  that  the  right  to  support  which  a  man  may  Neo-liience. 
have  in  favour  of  his  land  or  buildings  is  quite  independent  of 
the  question  of  negligence.     A  man,  of  course,  is  always  respon- 
sible to  his  neighbour  for  carrying  out  works  on  his  own  land  in 
a  negligent  and  improper  way. 

In  the  important  case  of  Bonomi  v.  Backhouse  (i)  the  question  Bonomi  v 
arose  as  to  the  time  at  which  an  actionable  injury  arises,  and  in  Backhouse, 
the  end  it  was  held  that  it  dates,  not  from  the  time  of  the  com- 
mencement of  the  wrong-doing — the  digging,  for  instance — but 
from  the  time  oi  the  plaintiff's  first  sustaining  actual  injury  :  the 
effect  of  which  is  that  he  will  not  necessarily  be  barred  by  the 
Statute  of  Limitations  lrom  bringing  his  action  seven  or  eight 
years  after  the  defendant's  commencing  to  do  that  which  ulti- 
mately resulted  in  injury  to  the  plaintiff. 

The  recent  case  of  Mitchell  v.  The  Darley  Main  Colliery  Com-  Dariev  Main 
pany  (£),  should  be  carefully  studied.     The  plaintiff  was  the  Colliery  case, 
owner  of  some  land  at  Darfield,  near  Doncaster,  and  in  18G7  and 
1868,  but  not  afterwards,  the  defendants  worked  a  seam  of  coal 
lying  under  and  near  to  his  land,  which  subsided  in  consequence 
of  their  excavations.     Some  cottages  of  the  plaintiff  standing  on 
his  land  were  damaged  by  the  subsidence,  and  were  repaired  by 
the  defendants.     In  1882  a  second  subsidence  of  the  plaintiff's 
land  occurred  owing  to  the  defendants  workings  in  1867  and  1868, 
and  the  plaintiff's  cottages  were  again  damaged.      In  an  action        t 
it  was  held  (finally  by  the  House  of  Lords)  that  the  plaintiff's 
right  to  sue  for  the  damage  done  to  his  cottages  in  1882  was  not 
barred  by  the  Statute  of  Limitations  (/). 

(g)  Chauntler  v.  Robinson,  4  operative  Society,  16  L.  E.  Ir. 

Ex.  163.  305. 

{h)  Richards  r.   Rose,  9  Ex.  [i).  9  H.  L.  C.  503. 

218;   and  see  Hide   v.   Thorn-  (k)  Overruling  Lamb  v.  Wal- 

borough.  2  C.  &  K.  250.  Solo-  ker,  3  Q.  B.  D.  389. 

iron  r.  Vintners  Co.,  4  H.  &  N.  (/)    In  connection  with  this 

585,  and  Latimer  v.  Official  Co-  case  see  the  case  of  Brunsden  v. 


306  SUPPORT    FROM    NEIGHBOURING   LAND. 

Land  sun-  -^n  owner  of  land  has  no  right  at  common  /aw  to  the  support  of 

ported  by        subterranean  water.     There  is  nothing,  therefore,  apart  from  con- 
water,  tract,  to  prevent  an  adjoining  landowner  from  draining  his  soil 
if  for  any  reason  it  becomes  necessary  or  convenient  for  him  to  do 

so  (»i). 

Highway  *D  a  recent  case  of  the  Highway  Board  of  Macclesfield  v.  Grant 

supported  by  («),  the  action  was  brought  to  recover  some  money  the  plaintiffs 
wall,  had  spent   in  repairing  a  wall  supporting  their  highway.     The 

wall  belonged  to  the  defendant,  and  the  plaintiffs  thought  that, 
as  the  defendant  and  his  predecessors  had  occasionally  repaired 
it,  he  and  his  successors  ought  to  go  on  doing  so  for  ever.  The 
defendant  did  not  see  it,  and  his  objection  was  supported  by  Mr. 
Justice  Lopes,  who  considered  that  "any  repairs  done  by  the  de- 
fendant or  his  predecessors  in  title  were  done  for  their  own  con- 
Tenience,  and  not  in  consequence  of  any  obligation." 
Other  cases.  The  following  cases  on  the  subject-matter  of  this  note  should 
also  be  consulted  : — Rowbotham  v.  Wilson,  6  E.  &  B.  593  ;  Part- 
ridge v.  Scott,  3  M.  &  W.  220  ;  Mundy  v.  Duke  of  Rutland,  46 
L.  T.  477  ;  Humphries  v.  Brogden,  12  Q.  B.  743  ;  Corporation  of 
Birmingham  v.  Allen,  6  Ch.  D.  284  ;  Aspden  v.  Leddon,  1  Ex. 
D.  496  ;  Davis  v.  Treharne,  6  App.  Ca.  460  ;  Lamaitre  v.  Davis, 
46  L.  T.  407  ;  Rigby  v.  Bennett,  21  Ch.  D.  559  ;  Normanton  Gas 
Co.  v.  Pope  and  Pearson,  52  L.  J.,  Q.  B.,  629  ;  Love  v.  Bell,' 9 
App.  Ca.  286  ;  Chapman  v.  Day,  47  L.  T.  705  ;  and  Dixon  v. 
White,  8  App.  Ca.  833. 


Nuisances. 

[125.]  SOLTATJ  v.  DE  HEUD. 

[2  Sim.  N.  S.  133  (1851).] 

Mr.  Soltau  was  a  family  man  residing  in  a  semi-de- 
tached bouse  at  Clapham.  The  adjoining  house  was, 
from  1817  to  1848,  occupied  as  a  private  house,  but  in 
the  latter  year  it  was  bought  by  a  religious  order  of 
Roman  Catholics,   calling  themselves    "The  Redemp- 

Humfrey,  53  L.  J..  N.  S.,  476,  of  the  same  act  of  negligence 

where  it  was  held  by  the  Court  but  which  did  not  develop  till 

of  Appeal   (dissentiente,    Lord  after  the  earlier  action  had  been 

Coleridge,  C.  J.)    that  a  plain-  brought. 

tiff,  who  had  recovered  damages  (/«)    Popplewell  v.    Hodkin- 

in  the  county  court  for  injuries  son,  L.  R.  4  Ex.  248. 

to  his  cab,  could  afterwards  sue  («)  51  L.  J.,  Q.  B.,  357 

for  personal  injuries  arising  out 


NUISANCES.  307 

tionists  Fathers,"  and  those  gentlemen  converted  the 
house  into  a  chapel,  and  appointed  de  Held,  a  Roman 
Catholic  priest,  to  officiate  therein.  One  of  the  first  acts 
of  Mr.  de  Held,  on  entering  on  the  scene  of  his  minis- 
trations, was  to- set  up  a  harsh  and  discordant  bell,  and 
to  ring  it  at  the  most  unnecessary  times.  As  Soltau, 
speaking  for  himself  and  the  neighbours  generally,  said 
plainly — "  The  practice  we  complain  of  is  offensive  alike 
to  our  ears  and  feelings  ;  disturbs  the  quiet  and  com- 
fort of  our  houses  ;  molests  us  in  our  engagements, 
whether  of  business,  amusement  or  devotion  ;  and  is 
peculiarly  injurious  and  distressing  when  members  of 
our  household  happen  to  be. invalids  ;  it  tends  also  to 
depreciate  the  value  of  our  dwelling-houses."  This 
was  a  complaint  emanating,  not  from  the  geDeral  body 
of  Claphamites,  who,  being  at  a  greater  distance,  were 
more  or  less  indifferent  to  the  matter,  but  from  those 
who  were  the  greatest  sufferers,  the  immediate  neigh- 
bours, and  it  was  on  this  ground  of  special  annoyance 
that  Mr.  Soltau  was  considered  entitled  to  be  heard. 

-Nuisances  are  divided  into  two  classes,  public  and  private,  and  Public  nui- 
the  rule  is  that  it  is  only  in  respect  of  the  latter  that  an  action  can  sance,  when 
be  brought.     A  public  nuisance  is  suppressed  by  indictment  or  actionable, 
information  ;  it  is  the  public  that  is  supposed  to  be  aggrieved  by 
what  the  defendant  has  done,  and  individuals,  as  individuals, 
have  nothing  to  do  with  it.     To  this  rule  Soltau  v.  De  Held  offers 
an  exception,  viz.,  that  when  the  public  nuisance  is  particularly 
obnoxious  to  an  individual,  it  is  considered,  as  far  as  he  is  con- 
cerned, to  be  also  a  private  nuisance,  and  he  may  bring  his  action 
or  apply  for  an  injunction.     To  take  a  venerable  illustration,  "//* 
A.  dig  a  trench  across  the  highway,  this  is  the  subject  of  an  indict- 
ment ;  but  if  B.  fall  into  it,  the  particular  damage  thus  sustained 
by  him  will  support  an  action."     The  bell-ringing,  in  so  far  as  it 
was  a  nuisance  to  all  Clapham,  was  a  public  nuisance,  and  the 
proper  way  to  put  it  down  was  by  indictment  or  information  ; 
but,  in  so  far  as  it  was  a  nuisance  to  Mr.  Soltau  personally,  it 
was  a  private  nuisance,  and  an  action  lay.  So  in  Iveson  v.  Moore  Tveson  » 
(o)  the  obstruction  of  a  highway  so  as  to  prevent  customers  from  Moore, 
coming  to  a  colliery  was  held  to  be  an  actionable  nuisance  ;  and 

(o)  1  Ld.  Kaym.  486  ;  and  see  Fritz  v.  Hobson,  14  Ch.  D.  542. 


.SOS 


NUISANCES. 


Benjamin  v. 
Storr. 


Winterbot- 

tom  i>.  Derby. 


People  must 
not  be  to 
fastidious. 


Importance 
of  particular 
circumstan- 
ces. 

Coming  to  a 
nuisance. 
Innocent  in- 
tention no 
excuse. 


Statutory 
right  to  be 
a  nuisance. 

Easement. 


Continuing 
nuisance. 


in  Benjamin  v.  Rtorr  (p)  a  coffee-house  keeper  in  a  narrow  street 
near  Covent  Garden  successfully  went  to  law  with  some  auc- 
tioneers who  made  an  unreasonable  use  of  the  highway  by  their 
vans  blocking  up  the  approaches  to  his  premises  and  intercept- 
ing the  light,  and  by  the  offensive  smells  arising  from  the  stale- 
ing  of  their  horses.  But  mere  delay  caused  by  an  obstruction  of 
the  highway,  or  the  trouble  and  expense  of  removing  it,  being 
common  to  all,  will  not  support   an  action  (7). 

There  is  another  important  practical  division  of  nuisances  to 
which  the  student's  attention  is  requested,  viz.,  into  those  which 
cause  damage  to  property,  and  those  which  merely  cause  personal 
discomfort.  When  a  nuisance  causes  substantial  damage  to  a 
man's  property,  he  can  always  get  compensation  for  it;  but  he 
must  put  up  with  a  good  deal — there  must  be  a  real  interference 
with  the  comfort  of  human  existence — before  he  can  successfully 
go  to  law  for  an  annoyance  of  the  other  kind  (/■). 

A  great  deal,  too,  depends  on  the  locality  and  circumstances. 
What  is  a  nuisance  in  one  place  may  not  be  in  another  (s). 

It  is  no  answer  to  an  action  for  a  nuisance  that  the  plaintiff 
knew  that  there  was  a  nuisance,  and  yet  went  voluntarily  and 
pitched  his  tent  near  it  (I). 

A  man  may  be  responsible  for  a  nuisance,  if  it  were  the  proba- 
ble consequence  of  his  act,  although  his  intentions  were  not  only 
innocent  but  praiseworthy  ;  as,  for  instance,  where  a  publican 
erected  an  urinal  but  arranged  the  premises  in  such  a  way  that  a 
space  left  was  habitually  used  for  improper  purposes  («). 

It  is  a  good  defense,  however,  to  an  action  for  a  nuisance  to 
show  that  the  act  complained  of  was  expressly  authorized  by 
statute  (a-)  ;  and  sometimes  the  defendant  may  claim  an  ease- 
ment which  entitles  him  to  annoy  the  plaintiff.  But  user  which 
is  neither  physically  preventable  by  the  owner  of  the  servient 
tenement,  nor  actionable,  cannot  found  an  easement  (y). 

Where  the  nuisance  is  of  a  continuing  kind,  so  that  successive 
actions  may  be  brought,  the  jury  cannot  give  damages  for  any- 
thing after  the  date  of  the  commencement  of  the  action  (z). 


(p)  L.  R.  9  C.  P.  400;  and 
see  Rose  v.  Miles,  4  M.  &  S.  101, 
and  Hubert  v.  Groves,  1  Esp. 
148. 

(q)  Winterbottom  v.  Derby, 
L.  R.  2  Ex.  316  ;  and  see  Picket 
v.  Metr.  Ry.  Co.,  L.  R.  2  H.  L. 
188. 

(r)  St.  Helen's  Smelting  Co. 
v.  Tipping,  11  H.  L.  C.  642; 
and  see  Crump  v.  Lambert,  L. 
R.  3  Eq.  409  ;  Walter  v.  Selfe, 
4  De  G.  &  Sm.  315  ;  Salvin  v. 
N.  Brancepeth  Coal   Co.,  L.   R. 


9  Ch.  705.  and  Shottslron  Co.  v. 
Inglis,  7  H.  L.  (Sc.)  518. 

(s)  Bamford  r.  Turnley,  3  B. 
&  S.  62. 

(1)  Per  Byles,  J.,  in  Hole  'v. 
Barlow,  27  L.  J.,  C.  P.,  208. 

(m)  Chibnall  v.  Paul,  29  W. 
R.  536. 

(x)  See  Vaughan  v.  Toff  Vale 
By.  Co.,  p.  300. 

(;/)  Sturges  v.  Birdgman,  41 
L.  T.  219. 

(z)  Battishill  v.  Reed,  18  C. 
B.  696. 


SEDUCTION.  300 

It  is  to  be  observed  that  when  a  nuisance  is  of  a  permanent  Reversioner 
nature,  or  injurious  to  the  reversion,  not  only  the  tenant  in  pos-  suing  for  nui- 
session,  but  the  reversioner  also,  may  sue  (a).  sance. 

In  a  recent  case  (b)  it  has  been  held  that  the  Attorney-General  The  Attorney 
may  sue  to  restrain  acts  of  interference  with  the  public  ways  General. 
without  proof  of  public  injury. 

In  Fletcher  v.  Bealey  (c),  it  was  held  that,  in  order  to  main- 
tain a  quia  timet  action  to  restrain  an  apprehended  injury,  the  Quia  timet 
plaintiff  must  prove  imminent  danger  of  a  substantial  kind,  or  action. 
that  the  apprehended  injury,  if  it  does  come,  will  be  irreparable. 
The  plaintiff  was  a  paper  manufacturer  on  the  Irwell  near  Man- 
chester, and  was  terribly  afraid  of  a  large  heap  of  refuse  which 
the  defendants,  who  were  alkali  manufacturers,  were  depositing 
on  some  land  a  mile  or  two  higher  up  the  river.  Though  there 
was  a  .considerable  prospect  of  damage  ultimately  resulting,  it 
was  held  that  the  plaintiff  was  premature  in  bringing  his  action, 
and  an  injunction  was  refused  him. 


Seduction. 


TERRY  v.  HUTCHINSON.  [126.] 

[L.  R.  3  Q.  B.  599  (1868).] 

This  case  illustrates  the  law  with  reference  to  seduc- 
tion. The  plaintiff's  daughter  had  been  seduced  by 
the  defendant,  and  the  question  to  be  decided  was  in. 
whose  service  was  the  girl  at  the  time  the  seduction 
took  place,  the  defendant  denying  that  the  daughter 
was  in  the  service  of  her  father,  the  plaintiff,  at  that 
period.  The  facts  were  as  follows:  the  plaintiff's 
daughter,  aged  nineteen,  was  in  the  service  of  a  draper 
at  Deal.  For  misconduct  in  connection  with  a  concert 
at  Deal,  her  master  dismissed  her  summarily,  and 
she  was  on  her  way  to  her  father's  house  at  Canterbury 

(a)  Bedingfield  v.  Onslow,  3  bury  Bridge  Co.,  51  L.  J.  Ch. 

Lev.   209:    and  see  Kidgill   v.  746. 

Moor,   9  C.    B.   364  ;  Young  v.  (c)  28  Ch.    D.   688;  and   see 

Spencer,   10  B.   &  C.  145;  and  Ripon  *.   Hobart,  3  My.  &  K. 

Cooper  v.   Crabtree,  20  Ch.   D.  169;  Att.-Gen.  v.   Kingston,  13 

589.  W.  R.  888;  and  Salvin  v.  North 

(6)  The  Att.-Gen.  v.  Shrews-  Brancepeth   Coal  Co.,   L.   R.  9 

Ch.,  705. 


aio 


SEDUCTION. 


when  she  was  seduced  in  the  railway  carriage  by  the 
defendant.  The  court  upon  these  facts  held,  that  there 
was  sufficient  evidence  that  the  girl  at  the  time  of  her 
seduction  was  in  the  service  of  her  father,  the  plaintiff, 
inasmuch  as  she  was  on  her  way  to  resume  her  former 
position  as  a  member  of  her  father's  family.  "  The 
girl,"  said  the  court,  "  is  under  twenty-one,  and  is 
therefore  prima  facie  under  the  dominion  of  her  natu- 
ral guardian;  and  as  soon  as  a  girl  under  age  ceases  to 
be  under  the  control  of  a  real  master  and  intends  to 
return  to  her  father's  house,  he  has  a  right  to  her  ser- 
vices, and  therefore  there  was  a  constructive  service  in 
the  present  case." 


A  legal  fic- 
tion. 

Proof  oi'  ser- 
vice. 


Daughter 
head  of  sepa- 
rate estab- 
lishment. 


Governess  on 
a  visit  home. 


The  action  for  seduction  is  based  upon  a  fiction.  The  plaintiff 
is  supposed  to  be  the  master  of  the  girl  seduced,  and  to  have  lost 
the  benefit  of  her  services  by  what  the  defendant  has  done  to  her. 
It  is  not  necessary,  however,  for  the  plaintiff  to  prove  any  express 
contract  of  service.  If  he  is  the  father,  and  his  child  is  under 
age  and  not  in  actual  service  with  some  one  else,  service  will  be 
presumed  (d);  and  if  he  is  not  the  father,  or  the  girl  is  not  un- 
der age,  service  will,  if  she  was  living  under  his  roof,  be  pre- 
sumed from  such  slight  acts  of  household  duty  as  making  tea  or 
milking  cows  (e).  On  the  other  hand,  if  the  plaintiff's  daughter 
was,  at  the  time  of  the  seduction,  in  the  service  of  another 
man — though  that  other  were  himself  the  seducer — no  action 
would  lie  (/).  In  Manley  v.  Field  (g)  the  woman  seduced 
rented  a  house  and  carried  on  the  business  of  a  milliner,  her 
mother  and  the  younger  members  of  her  father's  family  residing 
Avith  her,  and  receiving  part  of  their  support  from  the  proceeds 
of  her  business.  The  furniture  in  the  house  belonged  to  the 
father,  who  occasionally  visited  his 'family  there,  and  contributed 
something  to  their  support.  It  was  held  on  those  facts  that 
there  was  no  evidence  of  service.  In  Hedges  v.  Tagg  (/;)  the  plain- 
tiff 's  daughter  was  in  service  as  a  governess,  and  was  seduced 
by  the  defendant  whilst  on  a  three  days'  visit,  with  her  employer's 
permission,  to  the  plaintiff,  her  mother,  for  the  purpose  of  at- 
tending some  races  at  Oxford.  During  her  visit  she  gave  some 
assistance  in  household  duties.  Iu  spite,  however,  of  this  fact. 
it  was  held  she  was  not  in  her  mother's  service,  and  the  action 


(d)  Evans  r.  Walton,  L.    E. 
2  C.  P.  615. 

(e)  Bennett  v.  Alcott,  2  T.  R. 
168. 


(f)  Dean  v    Peel.   5  East,  47; 
Grinnell  r  .Wells,  7  M.&  G.1042. 
(?)  7C.  B.,  N.  S.,  96. 
(h)  L.  K.  9.  Ex.  2B3. 


SEDUCTION.  311 

could  not  he  maintained.     Moreover,  it  would  appear  that  where  Serving  two 

the  girl  is  in  the  service  of  one  man  at  the  time  of  the  seduction,  masters. 

and  of  another  at  the  time  of  the  pregnacy  and  illness,  no  action 

lies.     The  first  master  could  not  sue,  hecause  there  was  no  illness 

and  loss  of  service  while  she  was  with  him  ;  and  thf  second  could 

not,  hecause  the  woman  was  not  seduced  while  in  his  service. 

An  action  for  seduction  cannot  be  successfully  brought  against  Seducer  but 

a  man  who,  tnough  the  seducer,  was  not  the  father  of  the  child  »ot  lat.ht'r  of 

,  .     '  .        ,  ,,     ,  ~  •       /,x  the  child, 

whose  birth  occasioned  the  loss  of  service  (k). 

A  married  woman,  separated  from  her  husband  and  living  with  Married 
her  father,  may  be  the  latter's  servant  so  that  he  can  maintain  an  woman. 
action  for  seduction  >VZ,. 

Although  a  master  may,  as  a  rule,  seduce  his  servant  with  im-  Pretended 
punity.  it  is  a  question  for  the  jury  whether  the  hiring  was  bond  tilling. 
fide,  or  for  the  express  purpose  of  seduction,  as  in  Speight  v.  Oli- 
viera  (m),  where  the  wealthy  defendant  kept  an  empty  house  lor 
the  express  purpose  of  engaging  a  pretty  girl  to  look  after  it. 

Although  the  action  for  seduction  purports  to  be  only  an  action  The  damages, 
for  loss  of  services,  that  is  not  the  scale  on  which  the  damages  are 
calculated.  "In  point  of  form,"  said  Lord  Eldon,  in  aseduction 
case,  "the  action  only  purports  to  give  a  recompense  for  loss  of 
service  ;  but  we  cannot  shut  our  eyes  to  the  fact  that  this  is  an 
action  brought  by  a  parent  for  an  injury  to  her  child  ;  in  such 
case  I  am  of  opinion  that  the  jury  may  take  into  their  consider- 
ation all  that  she  can  feel  from  the  nature  of  the  loss.  They  may 
look  upon  her  as  a  parent  losing  the  comfort  as  well  as  the  ser- 
vice of  her  daughter,  in  whose  virtue  she  can  feel  no  consolation, 
and  as  the  parent  of  other  children  whose  morals  may  be  cor- 
rupted by  her  example  "  (n).  The  plaintiff  may  show  that  the 
defendant  was  addressing  his  daughter  as  an  honourable  suitor  (o), 
and  may  show  his  situation  in  life  (p)  but  not  his  pecuniary  po- 
sition (q).  He  is  not  allowed  to  give  evidence  of  his  daughter's 
good  character  till  the  other  side  try  to  shake  it  (r). 

In  mitigation  of  damages,  evidence  of  the  girl's  immodest  char-  Q\rys 
acter  or  conduct  may  be  given  (s).     The  defendant  may  also  show  character, 
that  by  encouraging  profligate  acquaintanceships,  the  plaintiff  is 
really  the  author  of  her  own  wrong  (/)• 

(i)  Davies  v.  Williams,  10  Q.         (p)  Andrews  v.  Askey,  8  C. 

B.  725  ;  and  see  Hedges  v.  Tagg,     &  P.  7. 

supra.  (q)  Hodsell  v.  Taylor,  L.  R.  9 

(k)  Eager  v.  Grimwood,  1  Ex.  Q.  B.  79. 

61.  (r)     Bamfield    v.   Massey,    1 

(1)  Harper  v.  Luffkin,  7  B.  &  Camp.  460. 

C.  387.  (s)  Verry  v.  Watkins,  7  C.  & 
(to)  2  Starkie,  493.  P.  308. 

(h)  Bedford  v.  McKowl,3Esp.         (t)  Reddie  v.  Scoolt,  1  Peake, 
(o)  Dodd  M.Norris,3Camp,519.     316. 


312  SEDUCTION. 

"When  death  is  caused  by  seduction  probably  no  action  can  be 
maintained  («). 
Particulars  ^  was  decided  recently  in  an  action  for  seduction,  that  the 

plaintiff  will,  not  be  ordered  to  give  particulars  of  the  times  and 
places  when  Jfhe  seduction  took  place,  until  the  defendant  has 
made  an  affidavit  denying  the  seductiou  (x). 


Action  for  Deceit. 


[127.]  PASLEY  v.  FREEMAN. 

[3  T.  R.  51  (1789).] 

This  case  illustrates  the  law  with  reference  to  repre- 
sentations as  to  the  character,  ability  and  credit  of  third 
parties  and  also  comprehends  all  instances  where  a  per- 
son has  been  deceived  by  the  wilful  or  thoughtless  state- 
ments of  another  by  trusting  to  the  accuracy  of  which 
he  has  been  damnified.  The  facts  were  as  follows. 
Pasley,  the  plaintiff,  was  a  person  who  dealt  in  cochineal, 
and  at  the  time  when  the  cause  of  action  arose  had  a 
large  stock  on  hand  of  which  he  was  anxious  to  dispose. 
Freeman,  the  defendant,  hearing  of  this  told  Pasley 
that  he  knew  a  Mr.  Falch  who  would  purchase  the  cochi- 
neal. Pasley  said,  "Is  he  a  respectable  and  substantial 
personV  Certainly  he  is"  answered  Freeman,  well 
knowing  he  was  nothing  of  the  sort.  On  the  faith  of 
this  representation  Pasley  let  Falch  have  sixteen  bags 
of  cochineal,  of  the  value  of  nearly  £3000  on  credit. 
Upon  the  bill  becoming  due  it  turned  out  that  Falch 
was  insolvent,  and  being  unable  to  recover  his  money 
from  Falch,  Pasley  sued  Freeman  for  making  to  him 
a  false  representation  whereby  he  was  damnified,  and 


(m)  Osborn  v.  Gillett,  L.  E.  8         (x)  Thompson  v.  Birkley,  47 
Ex.  88.  L.  T. 


ACTION   FOR   DECEIT.  ,  313 

it  was  held  that  Freeman  was  liable  to  Pasley  to  the  ex- 
tent that  he  had  suffered  in  consequence  of  Freeman's 
false  statement  as  to  the  credit  and  character  of  Falch. 

By  the  4th  section  of  the  Statute  of  Frauds,  "  no  action  shall  Statute  of 

be  brought  upon  any  promise  to  answer  for  the  debt,  default,  or  *  rauds, 

"        l  ,  ,  .  ...  ,  iourth  sec- 

miscamage  oi  another,  unless  such   promise  is  in  writing  and  tjQu 

signed  by  the  party  chargeable."  Freeman's  representation  was 
not  in  writing,  why  therefore  was  he  held  liable?  The  reason 
is  this,  that  section  refers  only  to  contracts  and  Pasley  sued  Free- 
man in  tort  and  it  is  a  well-known  principle  of  law  "thai  wher- 
ever deceit  or  falsehood  is  practised  to  the  detriment  of  another  there 
the  laio  will  give  redress."  Pasley  v.  Freeman  was  however  a  sub- 
stantial violation  of  the  Statute  of  Frauds  and  it  gave  birth  to  a 
progeny  of  similar  cases;  till  at  length  Lord  Tenterden  passed  Lord  Tender- 

an  Act  in  the  ninth  year  of  George  the  Fourth  which  provided  <len  sTA.ct»  w 

,      ,      ,  ■,  X.X.      u  Ge0-  IV- »  c- 

that  no  one  who  had  made  any  representation  as  to  the      con-  ^ 

duct,  character,  credit,  ability,  &c,  of  another  in  order  to  induce 
people  to  trust  him,  should  be  liable  to  an  action  for  false  repre- 
sentation unless  his  statement  were  in  writing  and  signed  by 
him.  The  point  cannot  be  said  to  be 'quite  settled  but  it  is 
probable  that  to  represent  a  particular  property  on  the  security 
of  which  a  person  was  thinking  of  lending  money,  to  be  sound 
and  safe  (e.  g.  to  say  that  a  person's  life-interest  in  certain  trust 
funds  was  charged  only  with  three  annuities)  would  be  held  to 
be  precisely  the  same  thing  as  representing  the  man  himself  to 
be  solvent,  for  a  man's  "ability"  consists  in  the  things  that  he 
has  (y). 

It  was  held  in  Pasley  v.  Freeman   that  it  is  no  defence  to  an  person  rep_ 
action  of  the  kind  that  the  defendant  had  no  interest  in  and  was  senting, 
to  gain  nothing  from  telling  his  untruth.  nothing  to 

Thus  in  the  recent  case  of  Leddell  v.  McDougal  (z),  where  the  ^ 
defendant  in  answer  to  the  plaintiff's  letter  asking  him  if  he 
could  recommend  a  man  named  Thornton  as  a  safe  and  respon- 
sible tenant,  had  had  "much  pleasure  in  replying  affirmatively" 
though  he  knew  Thornton  to  be  a  man  of  no  resources  and  that 
he  had  more  than  once  failed  in  business  similar  to  the  one  he 
now  wished  to  enter  into,  it  was  held  that  it  was  of  no  conse- 
quence that  what  the  defendant  had  said  he  had  said  out  of  mere 
kindness  and  had  no  idea  of  making  a  halfpenny  out  of  it  or 
even  of  deliberately  deceiving  the  plaintiff. 

In  Pearson  v.  Seligman  (a),  it  was  held  that  it  was  no  defence 
to  prove  that  the  false  representation  was  made  for  the  benefit  of 
the  person  making  it  and  not  for  the  benefit  of  the  person  praised. 

(y)  Lyde  v.  Barnard,  1  M.  &  tal  mistake. 

W.  101;  and  see  Swann  v.  Phil-  (z)  29  W.   R.   403;     and  see 

lips,  8  Ad.  &  E.  457;  and  also  Haycraft  v.  Creasy,  2  East,  103. 

Joliffe  v.  Baker  (post),  acciden-  (a)  31  W.  R.  730. 


314 


ACT-ION   FOR    DECEIT. 


Representa- 
tion need 
nut  be  direct. 


What  plain- 
tiff must 
show. 

Interest  of 
third  par- 
ties. 


Simplex 
commendatio. 


To  ground  an  aetion  for  deceit  it  is  not  necessary  that  the  false 
representation  should  he  made  directly  to  tlie  plaintiff.  It  is 
enough  that  the  defendant  intended  that  the  plaintiff  should  act 
upon  it.  If  hank  directors,  for  instance,  circulate  a  false  report 
formally  addressed  to  their  shareholders,  hut  really  intended  to 
catch  widows  and  clergymen  with  money  to  invest,  a  widow  or 
clergyman  who  has  thereby  been  inveigled  into  buying  shares 
may  sue  for  the  loss  she  or  he  has  sustained  {!>).  But  if  the 
plaintiff  did  not  rely  on  the  false  statement  complained  of,  he  can- 
not maintain  an  action  for  deceit  (c). 

In  an  action  for  deceit  the  plaintiff  must  show  first,  that  the 
false  statements  made  to  him  were  fraudulent:  secondly,  that 
they  were  a  cause  inducing  him  to  act  to  his  prejudice  (</). 

In  another  case  a  man  for  the  purpose  of  enabling  a  company 
to  have  a  fictitious  credit  in  case  of  inquiries  at  their  bankers, 
placed  money  to  their  credit  which  they  were  told  to  hold  in 
trust  for  him.  Some  of  the  money  having  been  drawn  out  with 
his  consent,  and  the  company  having  been  ordered  to  be  wound 
up  while  a  balance  remained:  it  was  held  that  he  could  not 
claim  to  have  the  balance  paid  to  him  (c). 

In  the  case  of  Smith  v.  Land  and  House  Property  Corporation 
(/)  the  plaintiffs  advertised  for  sale  by  auction  an  hotel  stated 
in  the  particulars  to  be  held  by  a  '■'mod  desirable  tenant.''''  The 
defendants  sent  their  secretary  down  to  inspect  the  property  and 
report  thereon.  The  secretary  reported  very  unfavourably  stat- 
ing that  the  tenant  could  scarcely  pay  the  rent  (£400),  rates,  and 
taxes.  The  deiendants,  relying  on  the  statements  in  the  par- 
ticulars authorized  the  secretary  to  attend  the  sale  and  to  bid  up 
to  £5000.  The  property  was  bought  in  at  the  sale  and  the  sec- 
retary purchased  it  by  private  contract  for  £4700.  It  appeared 
subsequently  that  the  quarter's  rent  previous  to  the  sale  had 
not  been  paid  ;  the  previous  quarter  had  been  paid  by 
instalments,  and  six  weeks  after  the  sale  the  tenant  filed 
his  petition.  It  appeared,  however,  that  the  hotel  business 
was  as  good  during  the  last  year  as  previously,  and  that  the 
month  of  the  tenant's  failure  was  the  best  he  had  had.  The 
plaintiffs  brought  an  action  for  specific  performance,  relying  in 
answer  to  the  defence  and  counter-claim  for  rescission  (on  the 


(b)  Scott  v.  Dixon,  29  L.  J. 
Ex.  62,  n. ;  and  see  Peake  v. 
Gurney,  L.  R.  6  H.  L.  377; 
Barry  v.  Crosskey,  2  J.  &  H.  1 ; 
Gerhard  v.  Bates,  2  E.  &  B.  476; 
and  Richardson  v.  Silvester,  L. 
R.  9  Q.  B.  34. 

(c)  Smith  v.  Chadwick,  post. 

(d)  Taylor  o.  Ashton,  11  M. 
&  W.  401;  Smith  i>.  Chadwick, 
9  App.  Cases,  187;  53  L.  J. 
Chancery,  873;  50  L.  T.  697; 
32  W.  R.  687;  48  J.  P.  644;  H. 


L.  (E). 

(e)  In  re  Great  Berlin  Steam- 
boat Co.,  26  Ch.  D.  616;  54  L. 
J.  Ch.  63;  51  L.  T.  445;  C.  A.; 
Hart  v.  Swain,  7  Ch.  D.  42; 
Evans  v.  Edmonds,  13  C.  B. 
777;  Ark wright  v.  Newbold,  44 
L.  T.  393. 

(/)  Smith  v.  Land  and  House 
Property  Corporation,  49  L.  T. 
532;  48  J.  P.  101;  Denman,  J. 
28  Ch.  D.  7;  51  L.  T.  718;  49 
J.  P.  182:  C.  A. 


ACTION   FOR    DECEIT.  315 

ground  of  misrepresentation)  on  the  fact  that  the  defendants  had, 
made  their  own  inquiries.  It  was  held  that  the  statement  that  the 
property  was  held  by  a  "  most  desirable  tenant  "  could  not  be  treated 
as  "simplex  eommendeitio"  and  that  the  defendants,  having  relied 
thereon,  were  entitled  to  rescission  of  the  contract  on  the  author- 
ity of  Redgrave*.  Hurd  (20  Ch.  D.  1.). 

The  directors  of  a  company  issued  a  prospectus  inviting  sub-  Omission  in 
scriptions  for  debentures  stating  that  the  property  of  the  company  prospectus, 
was  subject  to  a  mortgage  of  £21,500,  but  omitting  to  state  a  sec- 
ond mortgage  of  £5000.  The  prospectus  further  stated  that  the 
objects  of  the  issue  of  debentures  were  (1)  to  purchase  horses  and 
■vans  ;  (2)  to  complete  alterations  and  additions  ;  (3)  to  supply 
cheap  fish.  The  true  object  was  to  get  rid  of  pressing  liabilities. 
The  plaintiff  advanced  £1500  upon  debentures  under  the  errone- 
ous belief  that  the  prospectus  offered  him  a  charge  and  would  not 
have  advanced  his  money  but  for  such  belief,  but  he  also  relied  * 
upon  the  false  statements  contained  in  the  prospectus  as  to  the 
financial  condition  of  the  company.  The  court  held  the  mis-state- 
ment of  the  objects  for  which  the  debentures  were  issued  was  a 
material  mis-statement  of  fact,  influencing  the  conduct  of  the 
plaintiff  and  rendered  the  directors  liable  to  an  action  for  deceit, 
although  the  plaintiff  was  also  influenced  by  his  own  mistake  (g). 

It  is  not  enough  to  show  that  the  statement  in  a  prospectus  is  praU(i  must 
untrue,  it  may  have  been  merely  expressive  of  sanguine  confi-  be  shown, 
dence  ;  fraudulent  misrepresentation  must  be  shown  (/*). 

In  Maddison  r.  Alderson  (0  the  plaintiff  was  induced  to  serve 
a  man  as  his  housekeeper  for  many  years  and  give  up  other  pros- 
pects of  advancement  in  life,  by  a  verbal  promise  made  by  him  to 
leave  her  a  farm  for  her  life.  He  signed  a  will  leaving  the  farm 
in  accordance  with  his  promise  but  the  will  was  not  duly  wit- 
nessed. The  Lord  Chancellor  Selborne  held  that  assuming  a  con- 
tract in  fact  between  A.  and  the  appellant,  there  was  no  part  per- 
formance unequivocally  referable  to  a  contract  so  as  to  exclude 
the  operation  of  the  Statute  of  Frauds  :  and  that  the  appellant 
could  not  recover  the  farm  from  the  man's  heir. 

The  fraudulent  purpose  must  be  proved  by  the  plaintiff.     The  Concealment 
active  concealment  of  a  material  fact,  e.g.,  where  the  vendor  of  a  of  material 
house  plasters  over  a  defect  in  the  wall,  may  operate  as  a  misrep-  Rep- 
resentation (k),  but  no  mere  non-disclosure  where  there  is  no  duty 

(g)  Edgingtonr.  Fitzmaurice,  (/)  Maddison   v.    Alderson,  8 

20  Ch.  D.  459;  53  L.  T,  369  ;  33  App.  Cases.  473  ;  52  L.  J.  Q.  B. 

W.  R.  911  ;  C.  A.  affirming  32  737  ;  49  L.  T.  303  ;  31  W.  R.  820; 

W.  R.  848.— Denman,  J.  47  J.  P.  821  per  Selborne,  C. 

(70  Bellairs  v.    Tucker  ;    see  (k)  Schneider     v.     Heath,    3 

also   Roots  v.  Snelling,  48  L.  T,  Camp.  505. 
N.  S,  216 ;  14  Q.  B.  D.  302. 


31G  ACTION    FOR   DECEIT. 

to  disclose,  as  in  the  diseased  pigs  case  where  the  seller  declined  to 
•jive  any  kind  of  warranty  or  representation  as  to  them,  but  left 
the  purchaser  to  go  entirely  by  their  appearance  (I).  As  to  the 
rescinding  of  contracts  on  grounds  of  fraud,  the  equity  leading 
cases  of  Shirley  v.  Stratton  (m),  Attwood  v.  Small  (n),  and  Red- 
grave v.  Hund  (o)  should  be  referred  to. 
Fraud  a  de-  In  Abouloif  v.  Oppenhcimer  and  Co.,  it  was  decided  that  a  for- 
fence  to  eign  judgment  obtained  by  the  fraud  of  a  party  to  the  suit  in  the 

a  foreigp  foreign  court  cannot  be  afterwards  enforced  by  him  in  an  action 

judgment.       brought  in  an  English  court,  even  although  the  question  whether 
the  fraud  had  been  perpetrated  was  investigated  in  the  foreign 
court,  and  it  was  there  decided  that  the  fraud  had  not  been  com- 
mitted (})). 
Omissions  in      -A-  dwelling  house  and  offices  were  put  up  for  sale  by  public  auc- 
particulars  of  tion,  under  a  printed  condition  in  a  common  form,  that  the  lot  was 
sale  at  Sold  subject  to  any  existing  rights  and  easements  of  whatever  na- 

auction.  ture — an(j  j.jje  printed  particulars  made  no  mention  of  any  ease- 

ment or  of  any  claim  to  an  easement.  As  the  result  of  evidence 
it  appeared  that  the  house  was  subject  to  an  easement  belonging 
to  the  owner  of  a  neighbouring  tenement  to  use  the  kitchen  for 
particular  purposes,  and  that  the  vendor's  solicitor  knew  of  the 
rumoured  existence  of  some  such  casement,  but  forbore  to  make 
inquiries.  No  grant  of  an  easement  appeared  from  the  abstract 
and  its  existenee  was,  in  fact,  disputed  on  the  pleadings.  In  the 
auction  room  the  plaintiff's  solicitor  said  he  had  heard  of  some 
such  claim,  but  had  no  definite  information  about  it,  and  the 
auctioneer,  in  hearing  of  the  plaintiff's  solicitor,  on  being  ques- 
tioned, told  the  audience  that  they  might  dismiss  the  subject  of  the 
rumoured  claims  from  their  minds,  as  nobody  Avould  probably  ever 
hear  of  them  again.  Held,  that  the  conditions  were  misleading 
and  the  statements  in  the  auction  room  insufficient,  and  specific 
performance  of  the  contract  refused  (q). 
Marriage  ^n  an  acti°n  to  set  aside  a  marriage  settlement,  the  plaintiff  al- 

settlement.  leged  as  the  ground  of  his  action,  that  previous  to  the  execution 
of  the  settlement  made  upon  the  marriage  between  himself  and 
J.  S.,  the  latter  stated  to  him  that  her  first  husband  had  been 
divorced  from  her  at  her  suit,  by  reason  of  his  cruelty  and  adultery 
and  that  she  had  not  herself  been  guilty  of  adultery  ;  that  such 
statements  were  made  to  induce  him  to  execute  the  settlement  and 
contract  the  marriage  ;  that  in  reliance  on  the  representations  he 
executed  the  settlement  and  married  J.  S. ;  that  he  subsequently 
discovered  that  the  representations  were  false  to  the  knowledge  of 

(OWardn  Hobbs73Q7B._ix  {p)~io~Q'B7D729oT52  L.  J. 

150  ;  and  see  Fletcher  v.  Krell,  Q.  B.  1  ;  47  L.  T.  3:25;  31  W.R. 

42  L.  J.  Q.  B.  55.  57  ;  C.  A.  affirming  30  W.  R.429. 

(»n)  1  B.  R.  C.  C.  440.  D. 

(»)  C.  A.  &  F.  232.  (q)  Hevwood  v.  Mallalien,  25 

(o)  20  Ch.  D.  1.  Ch.  D.  357;  53  L.  J.  Ch.  492;  49 

L.T.658;  32  W.  R.  538.—  V.C.B. 


ACTION    FOR    DECEIT^  317 

J.  S.,  that  she  herself  had  been  divorced  from  her  husband  at  his 
suit  and  by  reason  of  her  adultery.  Held,  on  motion  by  the  de- 
fendant, that  the  plaintiff's  statement  of  claim  must  be  struck 
out  under  Ord.  XXV.,  r.  4.  as  disclosing  no  reasonable  ground  of 
action  (r). 

In  an  action  to  recover  by  way  of  damages  money  lost  by  the  Concealment 
fraudulent  representations  of  the  defendant,  a  reply  to  a  defence  oi  fraud, 
of  the  Statute  of  Limitations  that  the  plaintiff  did  not  discover  Statue  of 
and  had  not  reasonable  means  of  discovering  the  fraud  within  six  Limitation, 
years  before  action,  and  that  the  existence  of  such  fraud  was 
fraudulently  concealed  by  the  defendant  until  within  such  six 
years  was  held  good  by  the  Court  of  Appeal  (s). 

The  common  law  action  to  recover  damages  for  the  infringe-  Trade  marks 
ment  of  a  trade  mark  was  based  upon  the  ground  of  fraud  (t).        and  copy- 
But  it  is  not  now  necessary — nor  was  it  ever  in  equity — to  nSnt; 
prove  fraud  against  a  defendant  in  such  a  case  («).  raud.  not 

At  common  law  there  was  no  copyright  in  literary  productions   .  \ 

rj    °  J  r  At  common 

after  publication,  but  there  was  before  (x).  iaw 

For  the  present  law  upon  the  subject  of  copyright,  see  for  copy-  gy  statute, 
right  in  books  5  &  6  Vic.  c.  45.  Copyright  in  designs  46  &  47  Vic. 
c.  57,  s.  113.  Copyright  in  dramatic  productions  3  &  4  Will.  IV. 
c.  15,  s.  1—5  &  6  Vict.  c.  45.  ss.  2,  20,  22.  Copyright  in  musical 
compositions  45  &  46  Vict.  c.  40.  Copyright  in  newspapers  44  & 
45  Vict.  c.  60.     Copyright  in  pictures  25  &  26  Vict  c.  68. 

The  plaintiffs,  who  were  upholsterers,  published  an  illustrated  B00ks 
catalogue  of  articles  of  furniture,  which  was  duly  registered  un- 
der the  Copyright  Act  as  a  book.  The  illustrations  were  en- 
graved from  original  drawings  made  by  artists  employed  by  the 
plaintiffs,  but  the  book  contained  no  letterpress  of  such  a  de- 
scription as  to  be  the  subject  of  copyright,  and  it  was  not  pub- 
lished for  sale,  but  was  used  by  the  plaintiffs  as  an  advertise- 
ment. The  defendants  published  an  illustrated  catalogue,  many 
of  the  illustrations  in  which  were  Copied  from  those  in  the  plain- 
tiffs' book.  Held,  by  the  Court  of  Appeal  (affirming  the  deci- 
sion of  Hall,  V.C. )  that  the  plaintiffs  were  entitled  to  an  injunc- 
tion restraining  the  defendants  from  publishing  any  catalogue 
containing  illustrations  copied  from  the  plaintiffs'  book. 

A  collection  of  prints  published  together  in  a  volume  is  a  book  What  is  a 
within  the  meaning  of  the  Copyright  Acts  and  the  proper  sub-  book? 


(V)  Johnston  v.   Johnston,  53  (7)  Rodgers  v.  Nowill,  5  C.  B. 

L.  J.   Ch.  1014  ;  51  L.  T.    537;  109;  Singer   Co.    v.    Wilson,    2 

32    W.   K.    1016.— Pearson,  J.,  Ch.  D.  434. 

affirmed  78  L.  T.  J.  1  19.  (u)  38  &  39  Vict.  c.  91  ;  39  & 

(s)  -Gibbs  v.  Guild,  9  Q.  B.  D.  40  Vict,  c.  33;  40  &  41  Vict  c. 

59;  see  also  Ecclesiastical  Com-  37. 

missioners  for  England  v.  North  (x)  Albert,  Prince,  v.  Strange, 

Eastern  Railway  Co.,  4  Ch.  D.  1  Mac.  &  (i.  25  ;  and  Reade  v. 

845;  observed  upon    Barber   v.  Conquest,  9  C.  B.  N.  S.  755. 
Houston,  14  L.  R.  Ir.  273  Ex.  D. 

22   COMMON    LAW. 


318  ACTION    FOR    DECEIT. 

ject  of  copyright,  though  it  contains  no  such  letterpress  as  could 
be  the  subject  of  copyright,  and  it  makes  no  difference  that  the 
book  is  not  published  for  sale,  hut  only  used  as  an  advertisement 
[Cobbett  v.  Woodward  (L.  It.   14  Eq.   40?)  overruled]  (y). 
First  pub-  '"  the  case  of  Coote  w.  Judd  (z)  it  was  decided  that  registra- 

lisher.  tion  of  copyright  is  had  if  the  name  entered  as  that  of  "  the  pub- 

lisher" is  not  that  of  the  first  publisher.     In  an  action  for  in- 
fringement of  copyright,  where  objections  to  the  registration  are 
not  delivered  within  the  prescribed  time,  the   action  may  never- 
«  thelessbe  dismissed  if  a  defect  in  the  registration  is  brought  out 

from  the  plaintiff's  evidence. 
Copyright  in      ^n  tne  case  °f  Dicks  v:  Yates  (a)  the  plaintiff  published  in 
title  of  book,  numbers  in  a  weekly  periodical  called  "Every  Week"  a  tale  in- 
"  Splendid      tituled  "  Splendid  Misery  ";  or  "  East  End  and  West  End,"  by  C. 
lsery.  ^    Hazlewood.     The  defendant  subsequently  commenced  issuing 

in  weekly  parts,  in  a  newspaper  published  by  him,  a  tale  by 
Miss  Braddon  intituled  "Splendid  Misery."  Plaintiff  was  regis- 
tered as  the  proprietor  of  "  Every  Week  "  before  the  publication 
of  it  began,  and  after  the  tale  had  been  completed  he  had  him- 
self registered  as  the  proprietor  of  "  Splendid  3Iisery  "  ;  or  "  East 
End  and  West  End,"  giving  the  date  of  publication  of  the  num- 
ber of  "Every  Week"  which  contained  the  first  number  of  the 
tale  as  the  date  of  the  publication  of  the  tale.  He  then  com- 
menced an  action  to  restrain  the  defendant  from  continuing  his 
publication  of  Miss  Braddon's  tale  under  the  title  of  "Splendid 
Misery,"  and  moved  for  an  injunction.  Before  the  motion  was 
made,  the  defendant  had  altered  the  title  of  Miss  Braddon's  tale, 
and  the  motion  was  ordered  to  stand  over  till  the  trial,  the  de- 
fendant undertaking  not  to  alter  the  new  title  in  the  meantime. 
The  tale  was  finished  under  the  new  title  before  the  trial.  It 
was  proved  that  a  novel  which  once  had  a  large  circulation  had 
been  published  in  1801  under  the  title  of  "Splendid  Misery, "  and 
that  secondhand  copies  could  still  be  met  with.  At  the  trial  it 
was  decided  by  Vice-Chancellor  Bacon  that  the  defendant  had 
infringed  the  plaintiff's  copyright,  and  made  an  order  containing 
no  declaration  of  right,  hut  simply  ordering  the  defendant  to  pay 
the  wholecosts  of  the  action.  The  defendant  appealed,  contend- 
ing that  the  plaintiff  had  no  title,  and  that  the  action  ought  to 
have  been  dismissed.  On  appeal  it  was  decided  that  it  is  not 
within  the  discretion  of  the  court  to  make  a  defendant  pay  the 
whole  cost  of  an  action,  if  the  plaintiff  has  no  right  to  sue,  that 
there  was  therefore  implied  in  the  order  a  declaration  that  the 
plaintiff  had  a  good  cause  of  action,  and  that  an  appeal  would 

(y)  Maple    &   Co.    v.    Junior  Ch.  36;  48  L.  T.  205;  31  W.  R. 

Armv  and  Navy  Stores,  21  Ch.  423. — V.  C.    B. ;    and   see   also 

D.  369; '52  L.J.   Ch.  67;   47  L.  Weldon   v.    Dicks,  10   Ch.    D. 

T.  589;  31  W.  R.  70;  C.  A.  247. 

(z)  23   Ch.  D.    727;  53   L.  J.         (n)  18  Ch.  D.  76. 


ACTION    FOR    DECEIT.  319 

lie  :  that  though  the  registration  of  "  Every  Week"  being  made 
before  any  part  of  that  periodical  was  published  was  not  a  good 
registration,  the  subsequent  registration  of  the  first  number  of 
the  tale  was  a  good  registration  to  enable  him  to  sue  in  respect 
of  infringement  of  copyright  in  the  title  of  the  tale,  supposing 
such  copyright  to  exist,  but  that  the  plaintiff  had  no  copyright 
in  the  title  "Splendid  Misery"  for  that  copyright  can  only  exist 
in  something  original  and  the  mere  adopting  as  a  title  a  hack- 
neyed phrase,  which  moreover  had  been  used  as  the  title  of  a 
novel  many  years  before,  and  which  for  anything  that  appeared 
might  have  been  copied  from  that  novel,  could  not  give  any  copy- 
right in  that  title  ;  therefore  the  plaintiff  had  no  title  to  sue  for 
infringement  of  copyright,  and  that  as  it  was  clear  that  the  pub- 
lic could  not  he  misled  into  purchasing  the  defendant's  tale  under 
the  belief  that  it  wras  the  same  as  that  of  the  plaintiff,  so  that 
there  was  no  ground  for  the  interference  of  the  court  on  the  prin- 
ciples  applicable  to  trademarks,  the  action  ought  to  be  dismissed 
with  costs.  It  seems  that,  as  a  general  rule,  there  cannot  be  any 
copyright  in  the  title  of  a  bookv. 

The  plaintiff  in  Ager  v.  Peninsular  and  Oriental  Steam  Navi-  Copyright  to 
gation  Co.  (b)  published  "The  Standard  Telegram  Code,"  a  book  "code." 
of  words  selected  from  eight  languages,  for  use  in  telegraphic 
transmissions  of  messages,  and  it  was  accompanied  by  figure 
cyphers  for  reference  or  private  interpretation.  The  book  was 
registered  under  the  Copyright  Act,  5  &  6  Vict.  c.  45.  The  de- 
fendants bought  a  copy  of  the  book,  and  compiled  for  their  own 
use  with  its  aid  a  new  and  independent  work,  as  alleged,  which 
was  their  own  private  telegraph  code,  and  they  distributed  copies 
of  their  book  amongst  their  agents  at  home  and  abroad,  but  they 
had  not  printed  their  book  for  sale  or  exportation.  It  was  de- 
cided that  the  defendants  had  infringed  the  copyright  of  the 
plaintiff,  and  that  a  perpetual  injunction  must  be  granted. 

An  author  and  lecturer  upon  various  scientific  subjects,  deliv-  Public  lec- 
ered  from  memory,  though  it  was  in  manuscript,  a  lecture  at  the  ture,  no  right 
Working  Men's  College,  upon  "The  Dog  as  the  Friend  of  Man. "  to  verbatim 
The  audience  were  admitted  to  the  room  by  tickets  issued  gratui- 
tously by  the  committee  of  the  college.     P.,  the  author  of  a  sys- 
tem of  shorthand  writing,  and  the  publisher  of  works  intended 
for  instruction  in  the  art  of  shorthand  writing,  attended  the  lec- 
ture and  took  notes,  nearly  verbatim,  in  shorthand,  of  it,  and 
afterwards  published  the  lecture  in  his  monthly  periodical  "The 
Phonographic  Lecturer."     The  court,  on  motion  for  an  injunc- 
tion to  restrain  the  publication,  decided  that  where  a  lecture  of 
this  kind  is  delivered  to  an  audience  limited  and  admitted  by 

(6)  20  Ch.  D.  637 ;  53  L.  J.  Ch.  589  ;  50  L.  T.  477 ;  33  W.  R. 
116.— Kay,  J.;  and  see  Cable  v.  Marks,  52  L.  J.  Ch.  107  ;  47  L. 
T.  432 ;  31  W.  E.  221  — V.-C.  B. 


320 


ACTION    FOR    DECKIT. 


Person  ag- 
grieved by 

entry. 

Face  of 
barometer 
not  a  book. 


Designs. 


Dramatic 
productions 
and  musical 
compositions 


tickets,  the  understanding  between  the  lecturer  and  the  audi- 
ence is  that,  whether  the  lecture  has  been  committed  to  writing 
beforehand  or  not,  the  audience  are  quite  at  liberty  to  take  the 
fullest  notes  for  their  own  personal  purposes,  but  they  are  not  at 
liberty  to  use  them  afterwards  for  the  purpose  of  publishing  the 
lecture  for  profit  ;  and  the  publication  of  the  lecture  in  short- 
hand characters  is  not  regarded  as  being  different  in  any  material 
sense  from  any  other;  and  an  injunction  was  accordingly 
granted  (c). 

Where  a  person  shall  deem  himself  aggrieved  by  any  entry  in 
the  register  of  copyright,  the  court  will  make  an  order  varying 
such  entry  (d). 

In  Davies  v.  Comitti  (c)  it  was  held  that  the  face  of  a  barome- 
ter displaying  special  letterpress  was  not  capable  of  registration 
under  the  Copyright  Act,  1842,  as  not  being  within  sec.  2  "a 
book  separately  published. ' ' 

The  law  upon  copyright  in  designs,  as  has  been  pointed  out,  is 
governed  entirely  by  the  Patents,  Designs,  and  Trade  Marks 
Acts,  1883  (/),  and  the  reader  is  referred  to  this  extensive  stat- 
ute for  information  upon  this  important  branch  of  the  law  of 
copyright. 

In  Fielding  v.  Hawley  (</)  a  butter  dish  consisting  of  a  dish 
and  cover  is  one  "article  of  manufacture  "  within  the  Copyright 
(Designs  Act,  1842,  and  it  is  a  sufficient  compliance  with  the  Act 
to  stamp  the  registration  mark  upon  the  dish  alone,  though  the 
cover  was  separate  from  and  not  in  any  way  attached  to  the  dish, 
and  though  the  entire  design  was  upon  the  cover,  and  protection 
is  not  denied  even  though  in  the  process  of  manufacture  the 
mark  becomes  illegible. 

The  publication  in  this  country  of  a  dramatic  piece  as  a  book 
before  it  has  been  publicly  represented  or  performed  does  not  de- 
prive the  author  of  such  dramatic  piece  or  musical  composition, 
or  his  assignee,  ol  the  exclusive  right  of  representing  or  perform- 
ing it  (h).  In  another  dramatic  case  the  Court  of  Appeal  decided 
that  the  person  whose  right  under  s.  20  of  5  &  G  Vict.  c.  4f>,  to 
such  sole  liberty  of  representing  a  musical  composition  has  been 
infringed  is  entitled  to  recover  the  penalty  of  40s.  given  by  sec. 
2of3&4  Will.  IV.,  c.  15,  although  such  musical  composition 
has  not  been  represented  at  a  place  of  dramatic  entertainment  (i). 

An  amateur  dramatic  club  gave  a  performance  of  a  copyright  play 


(c)  Nichols*.  Pitman.  26 Ch. 
D.  374  ;  and  see  Abernethy  v. 
Hutchinson,  3  L.  J.  Ch.  O.  S. 
209. 

(d)  Ex  parte  Poulton.  53  L.J. 
Q.  B.  32n  :  and  see  in  re  Riviere 
&  Co. 's  Trade  Mark,  53  L.  J. 
578 

(e)  54  L.  J.  Ch.  419. 


(/)  46&47Vict..c.  57,  s.  113. 

(g)  48  L.  T.  639. 

(/()  Chappell  v.  Boosev.  21 
Ch.  D.  232  ;  and  see  Reade  v. 
Conquest.  9  C.  B.  N.  S. 

(i)  Wall  v.  Taylor,  11  Q.  B. 
D.  102  ;  and  see  also  Wall  v. 
Martin,  ibid. 


ACTION   FOR   DECEIT.  321 

at  a  hospital  for  the  entertainment  of  the  inmates.  Admission 
was  free,  the  governors  of  the  hospital  paid  for  the  seats  and 
costumes  ;  tickets  were  given  to  members  of  the  dramatic  club 
to  distribute  among  their  friends,  and  some  reporters  for  the 
theatrical  newspapers  attended.  It  was  decided  that  the  per- 
formance was  not  a  performance  in  a  "place  of  dramatic  enter- 
tainment" within  3&  4  Will.  IV.,  c.  15  or  5  &6'  Vict.,  c.  45,  s. 
20,  and  that  the  performers  were  not  liable  ta  pay  penalties  to 
the  owners  of  the  copyright  (k). 

A  newspaper  is  within  the  Copyright  Act  (5  &  6  Vict.,  c.  45)  Newspaper's, 
and  requires  registration  under  that  Act  in  order  to  give  the  pro- 
prietor the  copyright  in  its  contents,  and  so  enable  him  to  sue  in 
respect  of  a  piracy  of  any  article  therein.  Also  to  enable  the 
proprietor  of  a  newspaper  to  sue  in  respect  of  a  piracy  of  any 
article  therein  he  must  show,  not  merely  that  the  author  of  the 
article  has  been  paid  for  his  services,  but  that  it  has  been  com- 
posed on  the  terms  that  the  copyright  therein  shall  belong  to 
such  proprietor  (1). 

In  Nottage  r.  Jackson  ( m)  it  was  decided  that  when  a  firm  of  Pictures, 
photographers  send  one  of  their  artists  to  take  a  negative  he  and 
not  they  is  the  author  of  the  photograph.  Two  oi  more  persons 
may  be  registered  as  "authors"  of  a  painting,  drawing  or  photo- 
graph, but  quasre  whether  the  copyright  would  subsist  for  the 
joint  lives,  or  the  lives  or  life  of  the  authors  and  seven  years 
afterwards. 

The  plaintiff  may  recover  damages  for  any  injury  which  is  the  Damages, 
direct  and  natural  consequence  of  his  acting  on  the  faith  of  the 
defendant's  fraudulent  representations  («).  In  Twycross  v. 
Grant  (o)  where  the  plaintitf  had  been  induced  by  the  fraud  of 
the  defendant  to  take  up  shares  which  were  really  worthless,  he 
was  held  entitled  to  recover  the  full  amount  he  had  paid  for  them 
although  they  had  a  market  value  at  the  time  he  took  them.  In 
a  recent  case  of  Clarke  v.  Yorke  {p)  the  question  arose  whether 
a  plaintiff  who  had  already  obtained  damages  in  the  county 
court  for  false  and  fraudulent  representations  could  bring  an  ac- 

(k)  Duck  V.  Bates,  49  L.  T.  1  C.  P.  559. 
507  ;    32  W.   R.  169  ;  42  J.  P.         (o)  2  C.  P.  D.  469. 
231  ;  12  Q.  B.  D.  79  ;    53  L.  J.,         (p)    31  W.   R.   62  ;   see   also 

Q.  B.  97  ;  affirmed  bv  13  Q.  B.  Evans  v.  Collins,  5  Q.  B.   820  ; 

D.   843  ;  53  L.  J.,  Q.  B.  338;  Pontifex  r.  Bignold,  3  M.  &G. 

50  I..  T.  778  ;  32  W.  R.  813  ;  63  ;    Cornfoot  v.  Fowke,   ante ; 

48  J.  P.  501.  Langridge  v.  Levy, post;  Behn 

(/)  Walter  v.   Howe,  17  Ch.  v.    Burness,    ante;    Ormrod    v. 

D.    708  ;    Cox    v.    Land     and  Hnth,  14  M  &  W.  651  :   Sulli- 

Water   Journal    Co.,    not    fol-  van  v.  Metcalf,  5  C.  P.  D.  4.r)f)  ; 

lowed,  L.  R.  9  Eq.  324  ;  CA.  Eaglefield    r.    Londonderry,  4 

(m)  Nottage  v.   Jackson,    11  Ch.  D.  693  ;  Cover's  case,  1  Ch. 

Q.'B.  D.  627  ;  52  L.   J.,  Q.   B.  D.   182}  Cornell  v.  Hay,  L.  R. 

760  ;  49  L.  T.   339  ;  32  W.  R.  8  C.  P.  328  ;  Brett  v.   Clowser, 

106  ;  C.  A.  5  C.  P.  D.  376  ;  Jury  v.  Stoker, 

(n)  Mullett  v.  Mason,  L.   R.  L.  R.  Ir.  9  Ch. '  D.  384. 


ACTION    FOR    DECEIT. 

tion  in  the  High  Court  for  further  damages  accrued  since  judg- 
ment in  the  county  court.  It  was  held  hy  Pearson,  J.  that  he 
could  not  do  this  as  the  cause  of  action  was  not  continuing  and 
his  right  of  action  was  exhausted. 


[128.] 


Trespass  ab  initio. 

VAUX  v.  NEWMAN. 

(Sometimes  called  the  Six  Carpenters'  Case.) 

[8  Coke  146  (1611).] 

This  case  illustrates  the  law  with  reference  to  those 
cases  wherein  a  person  empowered  by  the  authority  of 
the  law  to  do  certain  things,  forfeits  the  protection  which 
is  given  him  by  such  authority  by  reason  of  the  abuse 
of  the  privilege.  The  facts  in  the  leading  case  were  as 
follows:  Six  carpenters  entered  a  tavern  "and  did 
there  buy  and  drink  a  quart  of  wine,  and  then  paid  for 
the  same."  They  then  gave  a  further  order  for  "another 
quart  of  wine  and  a  pennyworth  of  bread,  amounting 
to  8d."  This  order  was  also  fulfilled.  For  the  second 
supply  the  men  refused  to  pay.  The  question  was, 
whether  this  non-payment  made  their  original  entry 
into  the  tavern  tortious;  in  other  words,  whether  it 
made  them  trespassers  ab  initio. 

The  court  held  that  the  men  did  not  become  tres- 
passer ab  initio  on  the  ground  that  mere  non-feasance 
is  not  enough.  In  order  to  constitut  e  trespass  ab  initio 
there  must  be  two  conditions.  First,  there  must  be 
misfeasance  as  distinguished  from  non-feasance;  and 
secondly,  the  authority  abused  must  be  one  given  by 
the  law,  and  not  by  an  individual. 

Who  is  tres-        ^'''  s*x  carPenters  abused  an  authority  given  them  by  the  law. 

passer  ab  The  law  gives  every  man  a  right  to  enteran  inn,  and  if  these  men 

inlio.  had  broken  the  glasses  or  actively  done  some  illegal  act  they 

would  have  been  guilty  of  misfeasance  and   have   become   tres- 


TRESPASS    AB    INITIO.  323 

passers  ah  initio;  but  they  were  only  guilty  of  non-feasance,  viz., 

of  declining  to  pay  for  their  beverage.     They  did  not,  therefore, 

fulfil  the  conditions  essential  to  trespass  a  J  initio.     Instances  of  Examples. 

trespassers  ab  initio  may  be  mentioned  ;  the  lessor  who  enters  to 

view  waste  and  stays  all  night;  the  commoner  who  enters  to  view 

his  cattle  and  cuts  down  a  tree ;  and  the  man  who  enters  a  tavern 

and  continues  there  all  night  against  the  will  of  the  landlord.  In  such 

cases  that  is  misfeasance,  and  the  authority  is  conferred  by  the 

law.     The  reason  why  misfeasance  does  not  make  a  man  trespasser 

ab  initio  when  the  authority  is  conferred  by  an  individual  would 

seem  to  be  that  those  who  voluntarily  give  powers  can  limit  or 

recall  them  as  they  please,  while  the  abuse  of  powers  given  by 

the  law  needs  a  more  stringent  protection. 

The  power  of  a  landlord  to  distrain  his  tenant's  goods,  when  Distress  for 
the  latter  will  not  pay  rent,  is  authority  given  him  by  law,  and  rent, 
had  the  legislature  not   intervened  and  otherwise  provided,  it 
would  have  followed  as  a  corollary  from  the  principles  enunciated 
in  the  leading  case  that  misfeasance  in  distraining  would  make  a 
landlord  a  trespasser  ab  initio. 

Such  a  result  would,  in  many  cases,  obviously  work  great  hard- 
ship, for  in  an  action  for  illegal  distress,  where  the  defendant 
can  be  treated  as  a  trespasser  ab  initio,  so  as  to  make  his  posses- 
sion of  the  goods  wholly  wrongful  (q),  the  entire  value  of  the 
goods  taken,  without  deducting  the  rent  satisfied  by  the  seizure, 
will  be  recoverable,  and  not  merely  the  actual  damage  sustained 
by  the  tenant.  The  plaintiff  in  such  a  case  can  claim  to  be 
placed  in  precisely  the  same  position  he  was  in  before  the  tres- 
pass took  place.  A  remedial  statute  (?)  has,  however,  provided  11  Geo.  II.  c 
that  where  any  distress  is  made  for  rent  justly  due,  and  an  irreg-  y>  s<  y# 
ularity  afterward  occurs  on  the  part  of  the  landlord,  the  distress 
is  not  on  that  account  to  be  deemed  unlawful,  nor  the  persons 
making  it  trespassers  ab  initio.  In  such  case  the  parties  aggrieved 
may  recover  full  satisfaction  for  the  special  damage  they  have 
sustained,  but  no  more.  Indeed,  if  no  actual  damage  can  be 
proved  by  the  plaintiff  (s)  he  has  been  held  not  entitled  to  nom- 
inal damages,  although  he  may  have  established  the  fact  of  an 
irregularity. 

A  tenant  under  an  agreement  for  a  lease  is  liable  to  distress  (t). 

In  Megson  v.  Mapleson  («),  where  a  bailiff  has  levied  excessive  Excessive 
distress,  a  landlord  may  recover  from  him  the  amount  he  has  had  distress, 
to  pay  to  the  injured  tenant.     Perhaps  the  most  common  form  of 

(q)  Attack  v.  Bramwell,  32  L.  (s)  Lucas  v.  Tarleton,    27  L. 

J.,  Q.  B.  14(5.  J.  Ex.  246. 

(r)  11   Geo.   II.,  e.  19,  s.   19  ;  (t)  L.  J.  N.  Aug.  1883  ;  Bar- 

and  as  to  distress  for  poor  rate  rington  v.  Hamshaw. 

see  17  Geo.  II.,  c.  38,  s.  8.  (w)  W.  R.  318  :  49  L.  T.  7  1 1. 


324 


TRESPASS    AB    INITIO. 


Cattle  dam- 
age-feasant. 


Wrongful 
eviction  and 
apportion- 
ment. 
Trespass  ab 
initio  as  to 
part. 


irregularity  is  that  known  as  excessive  distress.  By  52  Hen.  III., 
c.  1,  it  is  enacted  that  they  who  take  great  and  unreasonable  dis- 
tress shall  be  grievously  amerced  for  the  excess  of  such  distresses. 
It  is.  however,  observable  that  (x)  no  action  is  maintainable  for 
distressing  for  mure  rent  than  is  due,  provided  the  distress  is  not 
excessive  as  to  that  which  is  due.  Again,  a  frequent  irregularity 
committed  is  that  of  selling  the  goods  without  subjecting  them 
to  the  appraisement  required  by  law,  in  which  case  the  measure 
of  damages  is  the  value  of  the  goods  minus  the  rent  due.  Of 
course,  it  must  not  be  assumed  that  a  distress  can  never  amount 
to  a  trespass  ab  initio.  The  statute  relieves  only  when  the  dis- 
tress is  in  itself  regular  and  proper,  though  marred  by  a  subse- 
quent irregularity.  Thus  it  has  no  application  (y)  where  the 
distress  is  etfected  by  breaking  open  an  outer  door,  or  (z)  where 
it  takes  place  between  sunset  and  sunrise,  or  where  the  goods 
taken  were  not  distrainable  at  all.  Nor,  again,  where  the  dis- 
tress is  made  after  tender  of  the  amount  due  ;  but,  notice,  that 
tender  after  distress  and  before  the  goods  are  impounded  makes 
their  detention,  but  not  the  original  taking,  wrongful.  And  this 
is  not  because  the  statute  steps  in  to  relieve  the  landlord,  but 
because  such  detention  is  a  mere  non-feasance,  and  would  not, 
therefore,  even  at  common  law,  render  the  distress  a  trespass  ab 
initio. 

It  will,  too,  be  remarked  that  the  statute  is  confined  in  its  ap- 
plication to  the  case  of  distraint  for  rent,  and  in  no  way  relates, 
for  example,  to  the  distress  of  cattle  damage-feasant,  so  that  the 
working  or  killing  of  such  cattle  would  amount  to  a  trespass  ab 
initio  on  the  part  of  him  who  had  distrained  them. 

When  an  animal  distrained  as  damage-feasant  is  impounded  on 
private  premises,  and  not  in  a  common  pound,  a  subsequent  ten- 
der of  sufficient  compensation  for  the  damage  actually  done  is 
good,  and  if  the  distrainer,  by  demanding  an  excessive  sum  for 
damages  as  the  condition  of  his  release  of  the  animal,  obtains 
payment  of  such  sum  from  the  owner,  such  payment  is  not  vol- 
untary, and  the  sum  paid  may  be  recovered  in  an  action  for 
money  had  and  received  (a). 

A  landlord  who  has  wrongfully  evicted  his  tenant  between  two 
quarter  days  is  not  entitled  to  the  apportioned  rent  up  to  the  day 
of  eviction  under  the  Apportionment  Act,  1870. 

A  landlord  may  be  a  trespasser  ab  initio  as  to  part  of  the  things 
he  distrains  upon,  and  not  as  to  the  rest,  as  if  there  be  a  seizure 

(.r)  Tancred  v.  Leyland,  16  Q. 
B.  669. 

(y)  Brown  r.  Glenn,  16  Q.  B. 
254. 

.      (z)  Sutton  v.  Darke,  29   L.  J. 
Ex.  271. 

(a)  Green   v.   Duckett,  11   Q. 
B.  I).  275;  5-2  L.  J.,  Q.  B.   435; 


48  L.  J.  677  ;  31  W.  R.  707  ;  47 
J.  P.  487. 

(/>)  Clapham  v.  Draper,  1  C. 
&  E.  484  :  Mather,  J. ;  and  see 
Scott  v.  Brown,  51  L.  T.,  746, 
Kay,  J.;  Sergeant,  Ex  parte, 
Sander,  In  re,  54  L.  J.,  Q.  B. 
331  ;  52  L.  T.  516  ;  49  J.  P.  582. 


ACTIONS    AGAINST    SHERIFFS.  325 

of  several  chattels,  some  of  which  are  by  law  seizable  and  others 
not,  the  seizure  is  illegal  only  as  to  the  part  which  it  was  unlaw- 
ful to  seize.  Thus,  in  one  well-known  case  (c),  a  landlord  dis- 
tained  for  rent,  amongst  other  things,  certain  looms  at  work. 
As  there  was  quite  sufficient  distress  on  the  premises  without 
these  looms,  they  were  not  by  law  distrainable,  so  that  so  far  as 
regards  them  the  distress  was  clearly  a  trespass  a b  initio.  The 
tenant  paid  the  amount  of  the  rent  and  the  costs  of  the  distress, 
which  was  then  withdrawn.  It  was  held  that  the  seizure  of  the 
looms  did  not  illegalise  the  whole  proceeding,  and  that  the  ten- 
ant was  entitled  to  receive  only  the  actual  damage  sustained  by 
the  taking  of  these  particular  goods,  and  not  the  whole  amount 
paid  by  him. 

In  connection  with  the  subject-matter  of  this  note,  it  is  usual  Forcible 
to  refer  to  the  position  of  a  person  having  a  right  of  possession  entry, 
in  regard  to  his  power  of  forcible  entry  on  the  land.  Under  an  (d) 
ancient  statute  the  assertion  of  his  right,  if  accompanied  by  a 
breach  of  the  peace,  amounts  to  an  indictable  offence,  but  the 
statute  does  not  create  any  civil  remedy  (e),  so  that  damages 
cannot  be  recovered  against  a  rightful  owner  for  a  forcible  entry 
on  his  land.  For  any  independent  wrong,  however  (such  as  an 
assault  or  an  injury  to  the  furniture  on  the  premises),  committed 
in  the  course  of  the  forcible  entry  (/),  damages  can  be  recovered 
even  by  a  person  whose  possession  was  wrongful. 

The  reader  is  also  referred  to  the  cases  of  Thwaites  v.  "Wilding, 
12  Q.  B.D.  4  ;  Nessf.  Stephenson,  9  Q.  B.  D.  245  ;  Ex  parte  Harris, 
34 -W.  R.  132. 


Actions  against  Sheriffs,  &c. 

SEMAYNE  r.  G-RESHAM. 

(Soinetimes  called  Semayne's  Case.) 

[5  Coke  91  (1605).] 

Berisford  and  Gresham  were  two  gay  young  sparks  of 
the  sixteenth  century.     They   were   great  churns,  and 

(c)  Harvey  v.  Pocock,   11   M.     &  G.  '644. 

&  W.  740.  (  f )  Beddall  v.  Maitland,  L. 

(d)  5  Richard  II.,  stat.  1,  c.  8.     R.  17  Ch.  D.  174. 

(e)  Newton  v.  Harland,  1  M. 


[129.] 


326 


ACTIONS    All  A  INST    SHERIFFS. 


lived  together  in  a  house,  of  which  they  were  joint  ten- 
ants, in  the  suburb  of  Blackfriars.  Berisford,  as  is  the 
manner  of  gilded  youth,  plunged  deeply  into  debt,  and 
one  of  the  largest  and  most  pressing  of  his  creditors 
was  a  Mr.  Semayne,  to  whom  he  "acknowledged  a  re- 
cognisance in  the  nature  of  a  statute  staple."  In  these 
impecunious  circumstances  he  was  lucky  enough  to  die, 
and,  by  right  of  survivorship,  the  ownership  of  the 
house  in  Blackfriars  became  vested  in  the  bereaved 
Gresham.  Now,  in  that  house  were  "divers  goods"  of 
the  late  Mr.  Berisford,  and  to  these,  in  virtue  of  the 
little  formality  of  the  statute  staple,  Semayne  not  un- 
reasonably considered  himself  entitled.  Accordingly, 
he  gave  instructions  to  the  sheriffs  of  London  to  go 
and  do  the  best  they  could  for  him,  and  those  function- 
aries, armed  with  the  proper  writ,  set  off  for  Blackfriars. 
But,  when  they  came  to  the  house,  Gresham,  who  had 
an  inkling  of  what  they  had  come  for,  shut  the  door  in 
their  faces,  "whereby  they  could  not  come  and  extend 
the  said  goods."  It  was  for  thus  "disturbing  the  ex- 
ecution," and  causing  him  to  lose  the  benefit  of  his 
writ,  that  Semayne  brought  this  action.  Much,  how- 
ever, to  his  surprise  and  disgust,  he  did  not  succeed, 
for  the  judges  said  Gresham  had  done  nothing  wrong 
in  locking  the  front  door,  'and  that,  even  when  the  king 
is  a  party,  the  householder  must  be  requested  to  open 
the  door  before  the  sheriff  can  break  his  way  in. 


Houses  as 
castles. 


Process  in 
civil  suit. 


Semayne's  ease  is  the  chief  authority  for  the  popular  legal 
maxim,  which  says  that  every  Englishman's  house  is  his  castle — 
domus  sua  cat  cuiquc  lutissimum  refugium — a  maxim  which,  in  the 
lawless  times  from  which  our  common  law  comes,  was  of  the 
utmost  importance,  for  what  the  law  cannot  do  in  that  it  is  weak, 
a  man  must  do  for  himself. 

This  maxim,  however,  in  common  with  almost  every  legal 
maxim,  must  be  received  with  very  considerable  qualifications. 
Thus,  a  sheriff  or  other  officer  of  the  law  empowered  to  execute 
process  in  a  civil  suit  may,  in  pursuance  of  his  duty,  enter  a 
man's  private  dwelling  house,  although  he  would  not  be  justified 
in  breaking  any  outer  door  or  window  in  order  to  effect  an  en- 


ACTIONS    AGAINST    SHERIFFS.  327 

trance  into  the  house;  and  "when  the  king  is  a  party,"  as,  Capturing 
e.g.,  in  the  ease  of  the  apprehension  of  a  felon,  the  officer  may  felons. 
enter  the  house  as  hest  he  may  by  hreaking  the  door  or  otherwise. 
It  must,  however,  be  carefully  noted  that  no  such  breaking  be- 
comes justifiable  until  the  officer,  having  given  due  notice  of  his 
business  and  having  demanded  admission,  lias  been  refused  to  be 
allowed  to  enter  the  house. 

Again,  a  landlord  may  enter  upon  the  premises  of  a  tenant  who  Distress  for 
has  not  paid  his  rent,  for  the  purpose  of  distraining  the  tenant's  rent, 
goods.  This  is,  however,  subject  to  certain  restrictions,  as,  for  in- 
stance, that  the  distress  must  take  place  after  sunrise  and  before 
sunset.  And  so.  too,  although  a  barn,  or  outhouse,  not  connected 
with  the  dwelling-house,  may  be  broken  open  in  order  to  levy  an 
execution,  yet  it  cannot  be  so  broken  in  order  to  make  a  distress 
for  rent  (g).  The  distinction  has  been  stated  to  be  '"between  the 
powers  of  an  officer  acting  in  execution  of  legal  process  and  the 
powers  of  a  private  individual  who  takes  the  law  into  his  own 
hands  and  for  his  own  purposes." 

And,  as  will  perhaps  be  readily  supposed,  when  a  house  has  Recovery  of 
been  recovered  by  an  action  of  ejectment,  the  sheriff  may  break  land, 
the  house  and  deliver  possession  to  the  plaintiff.    For,  after  judg- 
ment the  defendant  has  no  longer  any  right  to  retain  possession 
of  the  house. 

Moreover,  the  rule  that  "every  man's  house  is  his  castle"  does  sheltering 
not  apply  to  protect  it  from  invasion  in  case  his  friend,  upon  a  friends, 
pursuit,  takes  refuge  there  or  removes  his  goods  thither  in  order 
to  avoid  an  execution.     After  demand  of  admission  and  refusal, 
the  sheriff  may  break  open  the  doors  of  the  house  for  the  purpose  ev,er;g- 
of  executing  the  process  of  the  law,  but  he  does  so  at  his  peril,  breaking 
and,   if  it  should  turn  out  that  his  suspicions  were  not  well  open  door, 
founded,  the  act  of  breaking  amounts  to  a  trespass  on  his  part  (/<). 
Indeed,  it  has  been  said  that  if  the  sheriff  enters  the  house  of  a 
stranger,  even  through  an  open  door,  he  does  so  at  his  peril,  and, 
if  the  goods  of  which  he  is  in  search  are  not  found  there,  he  is  a 
trespasser  (t).     It  appears,  then,  that,  although  the  sheriff  can- 
not break  the  doors  of  one's  house  in  the  execution  of  a  civil  process 
against  one's  own  goods,  he  may  yet  justify  a  breach  for  the  pur- 
pose of  seizing  the  goods  of  a  stranger  'whose  ordinary  residence 
is  elsewhere.     A  house,  however,  in  which  a  man  habitually  re- 
sides would  seem,  on  principle  and  on  authority,  to  be  on   the 
same  footing  as  his  own  house  so  far  as  executions  are  concerned, 
for  it  is  there  that  one  would  naturally  expect  to   find   him  and 
his  goods.     The  sheriff,  therefore,  could  not  break  the  outer  door 
of  such  a  house  to  execute  any  process  against  the  man's  goods. 

As  to  what  is  to  be  considered  a  breaking  of  the  house  as  distin-  What  is  a 

(g)  Brovvn^~Glenn,  16  Q.  B.         (i)  Per  Dallas,  J.,  in  Cooke  v.  hreaking. 
254.  Uiit,  supra. 

(h)  Cooke  v.  Birt,  5  Taunt, 769. 


328  ACTIONS    AGAINST    SHERIFFS. 

guished  from  a  mere  entry,  the  cases  are  not  altogether  reconcila- 
ble. There  are  dicta  and  decisions  which  would  lead  to  the  con- 
clusion that  the  opening  of  a  door,  which  is  simply  latched,  con- 
stitutes a  breaking  on  the  part  of  the  sheriff ;  and  so,  too,  if  a 
window  be  shut  but  not  fastened  it  may  not  be  opened  for  the 
purpose  of  distraining  (A).  Where  a  pane  in  the  window  of  the 
house  happened  to  be  broken,  it  was  held  that  the  officer  might 
lawfully  put  his  hand  through  the  aperture  in  order  to  make  the 
arrest  (/). 
Execution  If  the  sheriff  in  executing  a  writ  break  the  house,   without 

good  though    authority  of  law  for  so  doing,  and  thereby  becomes  a  trespasser, 

it  seems  that  the  execution,  nevertheless,  is  good,  and  that  the 
trespasser.  '  .        ° 

injured  party  has  no  remedy  save  an  action  lor  trespass  against 

the  sheriff.     This,   at  any  rate,   appears  true  in  respect  of  an 

execution  against  goods.     The  execution  creditor  has  done  no 

wrong,  ami.  therefore,  so  much  of  the  sheriff's  proceedings  as 

was  for  his  benefit  should  be  considered   valid,   the  rest  illegal. 

An  arrest  of  the  person  by  means  of  an   unlawful  breaking  has, 

however,  been  deemed  to  be  altogether  void  (m),  and  there  is 

authority  for  stating  that,  even  in  thecaseof  an  execution  agaiust 

goods,  the  court  may  in  the  exercise  of  its  summary  jurisdiction, 

and  in  order  to  prevent  an  abuse  of  its  process,  undo  the  whole 

of  the  proceedings  (n)  and  set  the  execution  aside. 

The  reader  is  referred  to  the  following  cases  having  reference  to 
sheriffs,  they  are  too  numerous  to  be  dealt  with  at  large  in  a  book 
so  limited  as  the  present  volume  : — 

Smish  v.  Real,  9  Q.  B.  340.  Liability  of  execution  creditor  f>r 
wrongful  seizure  under  fi.  fa. — Implied  authority  of  solicitor — - 
Direction  to  levy  upon  particular  goods. 

Royle  v.  Busby,  6  Q.  B.  D.  171.  Sheriff's  officer— Abortive 
execution — Possession  money — Who  liable  to  pay. 

Hillard  p.  Hanson,  21  Ch.  D.  69.  Wrongful  seizure. — Fi.  fa. — 
Injunction — Costs. 

Ex  parte  Webster,  In  re  Morris,  22  Ch.  D.  136.  Costs  on  ap- 
peal from  an  interpleader  order. 

Ayhvin  v.  Evans,  52  L.  J.  Ch.  105  ;  47  L.  T.  568.  Restraining 
sale  under  fi.  fa. 

Smith  v.  Darlow,  26  Ch.  D.  605  ;  53  L.  J.  Ch.  696  ;  50  L.  T. 
571  ;  32  W.  R.  665.  Interpleader — Possession  money — Right  of 
appeal. 

Ladmore  r.  Ludford,  13  Q.  B.  D.  415,  Cave,  J.  Poundage — 
Costs  of  execution. 

(k)  Nash  v.  Lucas,  L.  R.  2Q.  (m)  Kerbey  v.  Denbv,  1  M.  & 

B.  590.  W.  336. 

(I)  Sandon  v.  Jervis,  E.  B.  &  (n)  See  Smith's  L.  C,  vol.  i., 

E.  935,  942.  p.  119. 


TROVER.  329 

Scarlett?:.  Hanson.  12  Q.  B.  D.  213. 

Harvey  v.  Harvey.  2(5  Ch.  D.  644.  Duty  in  executing  writ  of 
attachment. 

Crabtree  v.  Robinson,  15  Q.  B.  D.  312  ;  33  W.  R.  936.  Entry 
by  window. 

Crosthwaite,  Ex  parte,  In  re  Pearce,  14  Q.  B.  D.  966  ;  54  L.  J., 
<J.  B.,  316  ;  2  M.  B.  R.  105.  Duties  oT  sheriffs  as  to  goods  taken 
i;i  execution. 

Willis  v.  Combe,  1  C.  &  E.  353.  A  sheriff  is  not  liable  for 
■damage  to  goods,  which  he  has  seized  under  a  fi.  fa.,  caused  by 
a  mob  breaking  in  and  injuring  the  goods,  if  he  has  used  reasona- 
ble care  and  diligence  respecting  them — Stephen,  J. 

In  re  Purcell,  13  L.  R.  Ir.  489,  Miller,  J.  Sheriff  only  entitled 
io  retain  fees  on  amount  actually  levied. 

Hunt  v.  Fenshawe,  12  Q.  B.  D.  162  ;  32  W.  R.  316.  D.  Court 
may  order  private  sale  of  goods  instead  of  public  auction. 

Kelly  v.  Browne,  12  L.  R.  Ir.  348  Ex.  D.  False  return— Levy 
— Cheques  from  debtor — Performance  of  condition. 

Martin  v.  Tritton,  1  C.  &  E.  226,  Lopes,  J.  Liability  for 
seizure — Interpleader  order  rescinded. 


Trover,  &c. 


ARMORY  v.  DELAMIRIB.  ri3Q.] 

[1  Str.  504  (1722).] 

A  youthful  chimney  sweeper  was  fortunate  enough 
to  find  a  very  valuable  jewel,  and  he  took  it  to  a  jewel- 
ler's to  ascertain  its  value.  The  jeweller,  taking  ad- 
vantage of  the  boy's  simplicity,  told  him  it  was  worth- 
less, and  offered  him  three  halfpence  for  it,  which  the 
lad  declined,  and  demanded  his  prize  back.  The  jeweller 
refusing  to  return  it,  the  boy  went  to  law  with  him,  and 
elicited  from  the  judges  a  favourable  decision. 

"You  have  fairly  found  this  jewel,"  they  said,  "and 


330 


TROVER. 


Finding  not 
keeping. 


Possession 
nine-tenths 
of  the  law. 
Encroach- 
ments on 
commons. 

Command 

c  m  be  de- 
nied. 


Jus  tertii. 


Spoilers. 


nobody  except  the  real  owner  has  a  better  title  to  it 
than  yourself  ;  till  he  shall  appear,  you  may  keep  it 
against  all  the  world,  and  maintain  trover  for  it.' 

There  is  not  more  than  a  couple  of  grains  of  truth  in  the  time- 
honoured  tradition  that  finding  is  keeping.  The  duty  of  the  finder 
of  a  jewel,  or  other  valuable  article,  is  to  discover,  if  he  can,  Ihe 
person  who  has  lost  it;  and,  if  he  keeps  it  though  he  knows  per- 
fectly well  who  that  person  is,  he  will  merit  nobody's  sympathy 
if  he  finds  himself  shortly  afterwards  undergoing  six  months' 
imprisonment  with  hard  labour  for  stealing  (<>). 

This  note,  however,  is  concerned  with  the  case  where  the  real 
owner  of  the  thing  found  is  not  ascertainable,  and  the  chief  point 
on  which  Armory  v.  Delamirie  is  an  authority  is  as  to  what  is 
sufficient  to  enable  a  person  to  maintain  an  action  for  trover.  It 
is  not  merely  the  person  in  whom  resides  the  right  of  properly 
who  can  maintain  such  an  action.  Armory  had  not  that  right. 
It  was  all  along  in  the  person  who  had  lost  the  jewel.  All  Arm- 
ory had  was  the  right  of  possession ;  but  it  was  considered  that 
that  was  quite  a  sufficient  foundation  for  an  action  of  trover  as 
against  a  mere  wrong-doer.  On  the  same  principle  (viz.,  that 
mere  possession  is  sufficient  as  against  a  wrong-doer)  rests  a  well- 
known  rule  in  actions  of  ejectment,  namely,  that  the  plaintiff 
must  recover  by  the  strength  of  his  own  title,  and.  not  by  the 
weakness  of  his  opponent's.  Possession,  as  the  popular  adage  has 
it,  is  nine-tenths  of  the  law. 

A  man  in  Bedfordshire  enclosed  some  waste  land,  and  died  with- 
out having  had  it  for  twenty  years.  It  was  held  that  the  heir  of 
his  devisee  could  maintain  ejectment  against  a  person  who  had 
entered  upou  it  without  any  title  (p). 

It  is  on  the  sa.me  principle  that  the  rule  in  pleading  that  a  com- 
mand cannot  be  denied  rests.  The  position  the  person  so  pleading 
takes  up  is  this :  "Granted  that  the  person  you  profess  to  repre- 
sent has  better  right  than  I  have,  yet  you  don't  represent  him  ;  he 
never  told  you,  for  instance,  to  come  and  take  my  cattle.  I  may 
not  have  a  right  against  all  the  world,  but  I  have  a  right  against 
you  (q).  * 

So  a  defendant  in  possession  may  set  up  a  jus  frrlii — that  is, 
the  right  of  a  third  person — .to  the  lands,  to  disprove  the  claim- 
ant's alleged  right. 

Armory  v.  Delamirie  also  illustrates  an  important  maxim 
of  the  law, — omnia  prsesumuntur  contra  spoliaiorem  :  that  is  say,  to 
every  presumption  shall  be  made  to  the  disadvantage  of  a 
wrong-doer  (r).     Delamirie  refused  to  produce  the  stone  when  he 


(o)  See  Shirley's  Sketch  of  the 
Criminal  Law,  p.  5'2. 

( p)  Asher  i>.  Whitlock,  L.  R. 
1  Q.  B.  1 . 

(q)  Chambers    r.   Donaldson, 


1 1  East,  65,  and  Dobree  v.  Na- 
pier, 2  Bing.,  N.  C,  781. 

(r)  Carter  v.  Bernard,  13  Q.  B. 
945. 


TROVER.  331 

gave  back  the  socket,  so  it  was  presumed  as  against  him  to  be  the 
best  kind  of  stone  that  would  fit  the  socket.  So,  if  a  man  with- 
holds an  agreement  under  which  he  is  chargeable,  it  is  presumed 
as  against  him  to  have  been  properly  stamped  (s).  A  person  once 
claimed  a  debt  from  another,  the  proof  of  which  was  to  be  found 
in  certain  documents  which  were  sealed  up  and  in  his  keeping. 
Without  having  any  business  to  do  so,  he  broke  the  seal  and  opened 
the  bundle  of  documents.  The  court  did  not  in  the  least  doubt 
that  all  the  papers  were  before  it,  and  did  not  doubt  the  justness 
of  the  claim,  but  the  creditor's  whole  demand  was  disallowed  in 
odium  spoliatoris.  So  where  a  diamond  necklace  was  missed,  and 
part  of  it  traced  to  the  defendant,  who  could  give  no  satisfactory 
account  of  how  it  came  into  his  possession,  it  was  held  that  the 
whole  necklace  might  be  presumed  to  have  come  into  his  hands 
so  that  he  must  pay  the  full  value  (I). 

A  third  point  was  decided  in  the  leading  case,  viz. ,  that  "a  Respondeat 
master   is   answerable  for  the  loss  of  a  customer's  property  in-  superior. 
trusted  to  his  servant  in  the  course  of  his  business  as  a  trades- 
man.' '     The  responsibility  of  a  master  for  the  torts  of  his  servant 
will  be  found  treated  of  under  the  leading  case,  Limpus  v.  Gen- 
eral  Omnibus  Co.,  p.  293. 

When  goods  are  shipped  under  a  bill  of  lading,  drawn  in  parts  Trover, 
to  be  delivered  to  the  consignee  ' '  or  his  assigns, ' '  the  one  of  which 
bills  being  accomplished,  the  others  to  stand  void,  the  master,  or 
the  warehouseman  who  has  the  custody  of  the  goods  under  the 
Merchant  Shipping  Act,  1862,  ss.  G6-78  is  justified  in  delivering 
to  the  consignee,  on  production  of  one  part,  although  there  has 
been  a  prior  indorsement  for  value  to  the  holder  of  another  part, 
provided  the  delivery  be  bond  fide  and  without  notice  or  knowl- 
edge of  such  prior  indorsement.  Goods  having  been  shipped  for 
London,  consigned  to  C.  &  Co.,  the  ship  master  signed  a  set  of 
three  bills  of  lading  marked  first,  second  and  third  respectively, 
making  the  goods  deliverable  to  C.  &  Co.  or  their  assigns,  freight 
payable  in  London,  the  one  of  the  bills  being  accomplished,  the 
other  to  stand  void.  During  the  voyage  C.  &  Co.  indorsed  the 
bill  of  lading  marked  "first"  to  a  bank  in  consideration  of  a 
loan.  Upon  the  arrival  of  the  ship  at  London  the  goods  were 
landed  and  placed  in  the  custody  of  a  dock  company  in  their 
warehouses,  the  master  lodging  with  them  notice  under  the  Mer- 
chant Shipping  Act,  1862,  s.  68,  &c,  to  detain  the  cargo  until  the 
freight  should  be  paid.  C.  &  Co.  then  produced  to  the  dock  com- 
pany the  bill  of  lading  marked  "second"  unindorsed,  and  the 
dock  company  entered  C.  &  Co.  in  their  books  as  proprietors  of 

(s)  Crisp  v.  Anderson,  1  Stark.  (7)    Mortimer  v.   Cradock,  12 

35.  L.  J.,  C.  P.,  166. 


332  TROVER. 

the  goods.  The  stop  for  freight  heing  afterwards  removed,  the 
duck  company,  bond  fide  and  without  notice  or  knowledge  of  the 
bank's  claim,  delivered  the  goods  to  other  persons  upon  delivery 
orders  signed  by  C.  &  Co.  Held,  affirming  the  decision  of  the 
Court  of  Appeal,  that  the  dock  company  had  not  been  guilty  of 
a  conversion,  and  that  the  bank  could  not  maintain  any  action 
against  them  («). 

For  cases  on  the  subject  of  trover  see — 

Johnson  v.  Hook,  31  W.  R.  812  Stephen,  J.  Measure  of  dam- 
ages— also  1  C.  &  E.  89. 

Delaney  v.  Wallis,  14  L.  R.  Ir.  31  C.  A.;  15  Cox,  C.  C.  525,  C. 
A.     Sale  of  stolen  goods  in  market  overt. 

Tyler  v.  L.  &  S.  W.  Ry.  Co.,  1  C.  &  E.  285,  B.  Huddleson. 
Goods  in  custody  of  police. 

Comite  des  Assureurs  Maritimes  v.  Standard  Bank  of  South 
Africa.  1  C.  &  E.  87,  Stephen,  J.  Right  of  owner  to  follow  pro- 
ceeds of  sale. 


Conversion. 

[131.]  HILBERY  v.  HATTON. 

[2  H.  &C.  822  (1864).] 

Mr.  Hilbery,  a  Liverpool  merchant,  was  the  owner  of 
the  ship  John  Brooks,  which,  in  1862,  was  chartered  to 
take  a  cargo  to  Africa.  The  ship  arrived  off  the  coast 
of  Africa,  but  unfortunately  stranded  there.  The  con- 
signee of  the  cargo  took  possession  of  the  vessel,  and, 
without  any  authority,  had  her  put  up  for  sale.  One 
Thompson,  the  agent  of  the  defendants,  some  English 
merchants,  finding  her  going  cheaply,  bought  the  ship 
for  his  principals  without  knowing  that  the  consignee 
had  no  business  to  sell  her.  The  defendants,  on  being 
apprised  by  Thompson  of  what  he  had  done,  wrote  back 
to  him — "  You  do  not  say  from  whom  you  bought  her, 

a  I  rlyn,  Mills,  C'urrie  &  Co.  v.  East  and  West  India  Dock  Co., 
(i  Q.  B.  D.   I?."..  7  App.  Cases,  591. 


CONVERSION.  333 

nor  whether  you  have  the  register  with  her.      You  had 
better  for  the  present  make  a  hulk  of  her.''''     In  an  ac- 
tion by  Hilbery,  it  was  held  that  there  was  evidence  of 
a  conversion  by  the  defendants,  in  spite  of  their  circum 
spection. 

This  case  is  selected  as  illustrating  the  severity  with  which  the  "What  consti- 
Ittw  views  the  intermeddling  with  another  mail's  property.     The  recent  tutes  con- 
case  of  Kirk  v.  Gregory  («),  where  the  defendant  had  removed  %ersion- 
some  jewel len"  from  the  room  of  a  dying  man  under  the  reason- 
able fear  of  its  being  stolen,  may  also  be  referred  to.     Hiort  v. 
Bott  (x)  is  also  a  good  illustrative  case.     An  ingenious  scoundrel, 
named  Grimmett,  persuaded  the  defendant  to  indorse  to  him  a 
delivery  order  for  some  barley,  which  he  said  had  been  sent  to 
the  defendantby  mistake.     In  spite  of  his  good  intentions,  which 
were  simply  to  correct  what  he  believed  to  be  an  error,  the  de- 
fendant was  held  liable. 

Everyone  who  takes  part  in  the  wrongful  conversion  of  another  Servant 
man's  property  is  responsible,  even  though  he  is  only  a  servant  obeying 
obeying  his  master's  orders  (y).     "The  only  question  is,"  said  or  ers' 
Lord  Ellenborough  in  the  case  last  referred  to,  "whether  this  is 
a  conversion  in  the  clerk  which  undoubtedly  was  so  in  the  mas- 
ter.    The  clerk  acted  under  an  unavoidable  ignorance  and  tor  his 
master's  benefit  when  he  sent  the  goods  to  his  master;  but,  never- 
theless, his  acts  may  amount  to  a  conversion;  for  a  person  is  guilty 
of  a  conversion  who  intermeddles  with  my  property,  and  disposes 
of  it,  and  it  is  no  answer  that  he  acted  under  authority  from  an- 
other who  had  himself  no  authority  to  dispose  of  it.     And  the 
court  is  governed  by  the  principle  of  law,  and  not  by  the  hard- 
ship of  any  particular  case. "     About  four  or  live  years  ago  the 
owner  of  some  cabs  let  them  to  a  Mr.  Peggs,  cab-master,  under  a 
certain  agreement.     Mr.  Peggs  fraudulently  got  the  defendant,  Responsi- 
an  auctioneer,  to  sell  them  by  auction.     Though  the  auctioneer  bility  of 
had  thought  all   the  time  that  the  cabs  belonged  to  Peggs,  and  ' 
bad  acted  in  a  straightforward  and  correct  manner,  he  was  held 
liable  in  conversion  to  the  true  owner.     "The  defendant,"  said 
the  court,   "had  possession  of  these  goods;  he  advertised  them 
for  sale;  he  sold  them,  and  transferred  the  property  in  them,  and 
therefore,  from  beginning  to  end  he  had  control  over  the  property: 
and  unless  we  are  prepared  to  hold  contrary  to  all  the  definitions 
of  conversion  which  have  been  laid  down,  we  must  hold  that  such 
acts  amount  to  conversion.     But  the  auctioneer  will  not  be  held 
guilty  of  conversion  if  he  has  not  claimed  to  transfer  the  iittc  nor 
purported  to  sell,  but  has  simply  re-delivered  the  chattels  to  the 

(v)  1  Ex.  D.  5.",,  (y)  Stephens  v.  Elwall,  4  M. 

(x)  L.  R.  9  Ex.  86.  S.  259. 

23  COMMON   LAW. 


334  CONVERSION. 

person  to  whom  the  man  from  whom  he  received  them  told  him 

to  delivei  them  (z). 

Conversion  Where  the  conversion  cannot  he  proved  hy  any  positive  act,  it 

proved  by         nmv  jje  inferred  from  proof  of  a  demand  of  the  goods  by  the  plain- 

'  '  .       ,    '  tiff,  and  a  refusal  to  deliver  them  by  the  defendant,  he  having  the 

control  over  them  at  the  time  (a). 
Who  may  ^he  owner  of  goods  let  to  another  for  a  term  still  continuing 

sue.  cannot  maintain  an  action  for  conversion  (b);  hut  any  special  or 

temporary  ownership  with  immediate  possession  is  sufficient  (c). 
What  may  The  action  lies  only  in  respect  of  specific  personal  property;  there- 

he  sued  for.     fore  not  for  money  unless  identified  in  specie  (d). 
The  dam-  The  measure  of  damages  is,  in  general,  the  value  of  the  goods, 

ages.  But  ^n  js  js  uot  necessarily  so,  the  damages  heing  compensation  for 

the  loss  actually  sustained  by  the  wrongful  act  (e). 
Other  cases.         The  following  cases  on  this  subject  may  be  consulted: — 

Spackman  v.  Foster,  where  title  deeds  of  the  plaintiffs  were 
fraudulently  taken  from  them  and  deposited  by  a  third  person, 
without  their  knowledge,  with  the  defendant  in  1859,  who  held 
them,  without  knowledge  of  the  fraud,  to  secure  the  repayment 
of  a  loan.  The  plaintiffs,  on  discovering  the  loss  of  the  deeds  in 
1882,  demanded  them  of  the  defendant,  and  upon  his  refusal  to 
give  them  up  brought  an  action  to  recover  them,  to  which  the  de- 
fendant pleaded  the  Statute  of  Limitations.  The  court  held 
that,  until  demand  and  refusal  to  give  up  the  deeds  to  the  real 
owners,  they  had  no  right  of  action  against  which  the  statute 
would  run  (e).  And  see  Hardman  v.  Booth,  1  H.  &  C.  803; 
Cooper  v.  Chitty,  1  Bull.  20;  Mullince  v.  Florence,  3  Q.  B.  D. 
484;  Jones  v.  Hough,  5  Ex.  D.  115;  Fouldes  v.  Willoughby,  8  M. 
&  W.  540;  Glyn  v.  E.  &  W.  India  Dock  Co.,  7  App.  Cases,  591 
et  ante :  Lord  v.  Price,  L.  R.  9  Ex.  54;  and  Matthiessen  v.  Lon- 
don and  County  Bank,  5  C.  P.  D.  7. 

(z)  National  Mercantile  Bank  (d)  Orton  r.  Butler.  5  B.  & 
v.  Rymill.  44  L.  T.  767.  Aid.  652;   and     see     Foster  v. 

(a)  France  v.  Gaudet,   L.   P.     Green,  31  L.  J.  Ex.  158. 

6    Q.  B.    199.    and    Philpott   v.         (e)  Hiort   v.   L.  &  X.  W.  Ry. 

Kelley,  3  A.  &  E.  106.  Co.,  4   Ex.  D.  188;  Chinery  \\ 

(b)  Gordon  v.  Harper,  7  T.  R.  Viall,  5  H.  &  N.,  288;  and 
9;  and  see  Milgate  r.  Kebble,  Livingstone  v.  Rawyards  Coal 
3  M.  &  G.  100.  Co.,    5    App.  Ca.  25;    and  see 

(c)  Legg  v.  Evans,  6  M.  &  W.  Spackman  v.  Foster,  11  Q.  B. 
36,  and  Brierly   v.  Kendall,  17  D.  99. 

Q.  B.  937 


DEFAMATION,  335 


Defamation. 


CAPITAL,  AND  COUNTIES  BANK  r.  HENTY.  [132.] 

[7  App.  Cases  741,  52  L.  J.,  Q.  B.,  232;  47  L.  T.  662;  31  W.  R. 

157;  47  J.  P.  214  (1882).] 

"  Messrs.  Henty  and  Sons  hereby  give  notice  that 
they  will  not  receive  in  payment  cheques  drawn  on  any 
of  the  branches  of  the  Capital  and  Counties  Bank." 
The  publication  of  a  circular  to  this'  effect  by  some 
Chichester  brewers  caused  a  run  on  the  bank,  and  an 
action  for  libel.  But  it  was  held  that  the  circular  was 
not  libellous.  "It  seems  to  me  unreasonable,"  said 
Brett,  L.J.,  "that  where  there  are  a  number  of  good 
interpretations,  the  only  bad  one  should  be  seized  upon 
to  give  a  defamatory  sense  to  the  document." 

A  libel  may  be  defined  as  the  malicious  publication  of  untrue  Definition, 
defamatory  matter  by  writing,  printing,  or  the  like  signs,  with-  Libel, 
out  j  ust  cause  or  excuse. 

Slander  consists  of  defamatory  matter  merely  spoken.  Slander. 

An  action  for  libel  may  always  be  brought  when  the  words  Special  dam- 
published  expose  the  plaintiff  to  hatred,  ridicule,  or  contempt,  or  age. 
are  calculated  to  injure  him  in  his  business. 

But,  except  in  three  cases,  the  plaintiff  in  an  action  lor  slander 
must  prove  special  damage.     The  three  exceptional  cases  are: — 

(1.)  Where  the  words  charge  the  plaintiff  with  having  com- 
mitted some  indictable  offence  {infra). 

(2.)  "Where  they  impute  to  him  a  contagious  or  infectious  dis- 
ease. 

(3. )  Where  they  are  spoken  of  him  as  a  professional  or  busi- 
ness man. 

In  Riding  v.  Smith  (/),  it  was  held  that  a  grocer  and  draper, 
whose  wife  helped  him  in  the  shop,  could  recover  damages  for 
slander  charging  her  with  having  committed  adultery  on  the 
premises,  there  being  evidence  of  loss  of  custom  not  accounted 
for  except  by  the  slander. 

(/)  1  Ex.  D.  91. 


336 


DEFAMATION. 


Malice. 
Repetition  of 
slander. 
Inuendo. 


Publication. 


Criticisms. 


Truth. 


Injunction. 


Evidence. 


In  Webb  v.  Beavan  (g),  words  imputing  that  plaintiff  had  been 
guilty  of  a  criminal  offence  will  support  an  action  for  slander, 
without  special  damage,  even  though  the  criminal  offence  im- 
puted is  not  indictable. 

Malice  is  not  really  necessary  to  the  plaintiff's  case  (/<.). 

To  repeat  a  slander  is  as  actionable  as  to  start  it  (/). 

When  the  words  used  are  not  actionable  in  themseves,  but  by 
reason-Of  their  intended  meaning  (e.  g.,  if  used  ironically),  an 
inuendo  must  be  laid,  the  question  whether  the  words  are  capa- 
ble of  the  meaning  alleged,  and  whether  such  meaning  is  action- 
aide,  being  for  the  court,  and  the  question  whether  the  words 
were  used  with  the  alleged  meaning  for  the  jury  (A). 

Publication  to  a  third  party  must  be  proved.  The  mere  send- 
ing a  man  an  abusive  letter  contained  in  a  fastened-up  envelope 
i$  not  actionable  (I). 

Depreciatory  criticisms,  not  being  false  and  malicious,  by  one 
tradesman  on  the  goods  of  another  are  not  actionable  (m). 

Truth  is  a  complete  answer  to  a  claim  for  damages  for  slander 
or  libel. 

As  to  restraining  libels  by  injunction,  see  Hill  v.  Hart-Davis 
(ji),  and  Quartz,  &c,  Co.  v.  Beall  (o). 

In  an  action  for  libel,  evidence  of  the  existence  of  rumours  to 
the  same  effect  as  allegations  in  the  libel  is- not  admissible;  nor 
is  evidence  of  particular  acts  of  misconduct  on  the  part  of  the 
plaintiff;  but  general  evidence  of  his  reputation  may  probably 
be  given  in  mitigation  of  damage  (p). 

The  action  for  slander  of  title,  it  may  be  mentioned  here,  is 
not  strictly  an  action  for  defamation,  but  an  action  for  special 
damage  to  the  plaintiff  by  a  false  and  malicious  statement  affect- 
ing his  title  to  property,  and  it  does  not  matter  whether  the 
words  are  written  or  spoken  (q). 


(g)  11  Q.  B.  D.  609;  52  L.  J., 
Q.  B.  544;  49  L.  T.  201;  47  J. 
P.  488;  and  see  Societe  Fran- 
caises  des  Asphalt es  v.  Farrell, 
1  C.  &  E.  563;  Simmons  v. 
Mitchell,  6  App.  Cases,  156; 
Weldon  v.  De  Bathe,  54  L.  J., 
Q.  B.,  113;  33  W.  R.  328,  C.  A. 

(h)  Bromage  v.  Prosser,  4  B. 
&  C.  255. 

(0  Watkin  v.  Hall,  L.  R.  3 
Q.  B.  396. 

(Jfe)  Ruel  v.  Tatnell,  43  L.  T. 
507;  Simmons  v.  Mitchell.  43 
L.  T.,  X.  S.,  710;  and  see  the 
leading  case. 

(7)  Phillips  v.  Janser,  1  Esp. 
625;     Peacock    v.     Reynal,    2 


Brown,  151;  but  see  Delacroix 
v.  Therenot,  2  Stock,  63. 

(m)  Young  v.  Macrae,  3  B. 
&  S.  264;  Harman  v.  Delaney, 
2  Str.  898;  Evans  v.  Harlow,  52 
Q.  B.  624;  and  W.  Counties 
Manure  Co.  v.  Lanes,  &c,  Co., 
L.  R.  9  Ex.  218. 

(n)  31  W.  R.  22. 

(o)  51  L.  J.  Ch.  874;  and  see 
(IS.)  post. 

(}))  Scott  v.  Sampson,  8  Q. 
B.  D.  491. 

(q)  Malachv  v.  Soper,  3  Bing, 
N.  C,  371;  Brook  v.  Raw],  4 
Ex.  371 ;  Wren  v.  Weild,  L.  R. 
4  Q.  B.  730. 


DEFAMATION.  337 

For  the  law  of  libel  relative  to  newspapers,  see  the  Newspaper  Newspap< 
Libel  and  Registration  Act,  1881  {>•). 

In  Chamberlain  v.  Boyd  (s),  the  plaintiff  was  a  candidate  for 
membership  of  the  Reform  Club,  but  upon  a  ballot  of  the  mem- 
bers was  not  elected.  A  meeting  of  the  members  was  called  to 
consider  an  alteration  of  the  rules  regulating  the  election  of 
members.  The  defendant  falsely  and  maliciously  spoke  and  pub- 
lished of  the  plaintiff  as  follows: — "  The  conduct  of  the  "plain- 
tiff "was  so  bad  at  a  club  in  Melbourne,  that  a  round  robin  was 
signed,  urging  the  committee  to  expel"  him;  "as,  however," 
he  was  "  there  only  for  a  short  time  the  committe  did  not  pro- 
ceed further  ;"  whereby  the  defendant  induced  a  majority  of  the 
members  of  the  club  to  retain  the  regulations  under  which  the 
plaintiff  had  been  rejected,  and  thereby  prevented  the  plaintiff 
from  again  seeking  to  be  elected  to  the  club.  It  was  decided 
upon  demurrer  that  the  claim  disclosed  no  cause  of  action,  for  the 
words  complained  of,  not  being  actionable  in  themselves,  must 
be  supported  by  special  damage  in  order  to  enable  the  plaintiff 
to  sue ;  and  the  damage  alleged  was  not  pecuniary  or  capable  of 
being  estimated  in  money,  and  was  not  the  natural  and  proba- 
ble consequence  of  the  defendant's  words. 

The  court  has  power  to  restrain  a  person  from  making  slander- 
ous statements,  whether  oral  or  written,  calculated  to  injure  the 
business  of  another  (I). 

The  vendor  of  a  newspaper  in  the  ordinary  course  of  his  busi-  >jews 
ness,  though  he  is  prima 'facie  liable  for  a  libel  contained  in  it,  is  vendors, 
not  liable  if  he  can  prove  that  he  did  not  know  that  it  contained 
a  libel  ;  that  his  ignorance  was  not  due  to  any  negligence  on  his 
own  part ;  and  that  he  did  not  know,  and  had  no  ground  for  sup- 
posing that  the  newspaper  was  likely  to  contain  libellous  matter. 
If  he  can  prove  these  facts  he  is  not  a  publisher  of  the  libel  (u). 
As  to  the  question  of  admitting  as  evidence  other  parts  of  a  news 
paper  to  show  in  what  sense  the  words  constituting  the  alleged 
libel  were  used,  see  Bolton  v.  O'Brien  (v).     For  the  law  upon  Criminal  in- 
criminal  informations  for  libel,  see.  Reg.  v.  Yates  (x).     As  to  par-  formation, 
ticulars,  see  Bradbury  v.  Cooper  (y). 

(r)  44  &  45  Vict.  c.  60.  B.  D.  354. 

(s)  11  Q.  B.  D.  407  ;  52  L.  J.,         (v)  16  L.  R.  Ir.  97  Q.  B.  D. 
Q.  B.,  277;  48  L.  T.  328;  31  W.         (a;)  14  Q.  B.  D.  648;  54  L.  J., 

R.  572;  47  J.  P.  372,  C.  A.  Q.  B.,  258;  52  L.  T.  305;  33  W. 

(1)  Herman  Loog  v.  Bean,  26  R.  482;  49  J.  P.  436,  C.  A. 
Ch.  D.  306  ;  53  L.  J.Ch.  1128  ;         (y)  32  W.  R.  32  ;  12  Q.  B.  D. 

51  L.  T.  442  ;  32  W.  R.  994  ;  48  94  ;  53  L.  J.,  Q.  B.,  558  ;  48  J. 

J.  P.  708,  C.  A.  P.  198. 

(m)  Emmens  v.  Pottle,  16  Q. 


;;::s 


PRIVILEGED    COMMUNICATIONS. 


Privileged  Communications. 


[133.]  HARRISON  v.  BUSH. 

[5  E.  &B.  344 '(1855).] 

At  Frome,  in  Somersetshire,  there  was  a  contested 
election,  with  the  visual  amount  of  excitement  and  party 
feeling.  After  it  was  over,  Mr.  Bush,  an  elector  of 
Frome,  wrote  a  letter  to  Lord  Palmerston,  who  was  then 
Home  Secretary,  complaining  of  the  conduct  of  one  of 
the  local  magistrates  during  the  election,  and  saying 
that  he  bad  been  stirring  up  and  encouraging  sedition, 
instead  of  putting  it  down  with  a  strong  hand.  The 
magistrate  brought  this  action  for  libel,  but,  as  Mr.  Bush 
had  written  his  letter  with  the  best  intentions  and  in 
the  discharge  of  what  he  considered  to  be  a  public  duty, 
he  was  not  successful. 


Absolute  or 
conditional. 


Duty  or 
interest. 


A  man  must  always  discharge  his  duty  to  society  and  himself, 
notwithstanding  that  it  may  involve  the  employment  of  harsh 
speech  or  writing  concerning  his  neighbours ;  and  therefore  such 
speech  or  writing,  even  though  it  happens  not  to  be  true,  is 
privileged. 

The  privilege  may  be  absolute  or  conditional. 

Speeches  in  Parliament  (z),  or  in  a  law  court  (a),  2xe absolutely 
privileged.  So,  too,  are  the  statements  of  witnesses,  however 
irrelevant  ib). 

Ordinary  communications,  however,  are  not  privileged  abso- 
lutely, but  only  prima  facie ;  and  the  rule  is  that  wherever  one  per- 
son haiing  an  interest  to  protect,  or  a  legal  or  moral  duty  to  perform, 
make*  a  communication  to  another,  such  other  having  a  corresponding 


(z)  R.  v.  Abingdon,  1  Esp. 
228;  Davison  v.  Duncan,  7  E.  & 
B.  229;  and  Goffin  v.  Donnelly, 
G  Q.  B.  D.  307. 

(a)  Scott  v.  Stansfeld,  L.  R.  3 
Ex.  220.  and  Mackay  ».  Ford, 
5  H.  &  N.  792;  Minister ».  Lamb, 
11  Q.  B.  D.  588;  52  L.  J.,  Q.B., 


726;  49  L.  T.  252:  32  W.  R.  248; 
47  J.  P.  805.  C.  A.,  dissenting 
from  Kendillon  ?•.  Maltby.  C.  & 
M.  402:  2  M.  &  R.  438. 

(b)  Seaman  r.  Netherclift,  2 
C.  P.  D.  53:  Dawkins  v.  Roke- 
bv,  L.  R.  7  H.  L.  744:  and  Gof- 
fin v.  Donnellv,  6  Q.  B.  D.  307. 


PRIVILEGED    COMMUNICATIONS.  .       339 

interest  or  duty,  this  communication  in  prima  facie  privileged.  If, 
for  example,  a  person  of  indifferent  character  were  to  try  to  get 
elected  into  a  respectable  club,  a  member  who  knew  something 
of  his  antecedents  would  be  justified  in  making  to  the  commit- 
tee, or  to  another  member,  such  a  communication  as  would  in- 
sure his  being  duly  pilled.  So,  too,  a  master  who  parts  with  a 
servant  is  justified  in  telling  a  person  who,  with  a  view  to  em- 
ploying the  man,  inquires  about  his  character,  that  he  is  a  thief 
or  a  drunkard  (>).  In  the  recent  case  of  Waller  v.  Loch  (d)  the  Waller  v. 
plaintiff  was  the  daughter  of  a  deceased  officer  in  the  army,  and  Loch. 
was  in  distressed  circumstances.  A  subscription  list  was  started 
for  her,  and  she  would  have  made  a  good  hatful  out  of  it,  if 
somebody,  a  friend  of  one  of  the  intending  subscribers,  had  not 
written  to  the  Charity  Organisation  Society,  of  which  the  defend- 
ant was  the  secretary,  for  information  about  her.  The  society's 
report  was  unfavourable, — the  lady  was  an  imposter,  it  said,  and 
a  begging  letter  writer  who  lived  extravagantly  while  she  was 
appealing  for  charity.  This  report  Avas  held  to  be  a  privileged, 
communication.  "A  duty  of  imperfect  obligation,"  said  Cotton, 
L.J.,  i:  attaches  on  everyone  to  do  what  is  for  the  good  of  soci- 
ety. In  that  sense  it  is  the  dutyof  those  who  have  knowledge 
as  to  persons  seeking  charitable  relief  to  communicate  it  when 
asked  by  persons  who  wish  to  know  whether  the  applicants  are 
deserving  objects." 

But  even  in  those  cases  where  a  man  has  a  right  to  make  a  £>onif.  tej| 
communication  affecting  another's  character,  he  must  take  care  to  everybody. 
make  if  to  the" proper  person.     He  will  not  be  protected  against  the 
unpleasant  consequences  of  an  action  for  slander  if,  as  a  worthy  , 

draper  in  the  Harrow  Road  did,  he  goes  about  telling  everybody 
he  meets  that  So-and-so  has  been  robbing  him  (e). 

Privilege,  moreover,  is  not  more  than  a  presumption.     It  is  Express 
open  to  the  plaintiff  to  give  proof  of  express  malice,  and  show  that  malice  de- 
the  defendant's  professed  zeal  for  the  public,  or  the  urgent  neces-  stioys  Pm'i- 
sity  of  protecting  his  interests,  is  all  pretence,  and  that  he  really 
has  no  other  object  than  to  injure  the  plaintiff  (/). 

Privilege  or  not,  is  a  question  for  the  judge;  but  express  malice  Judge  and 
or  not,  is  for  the  jury  (</).  JU1T- 

An  interesting  case  (/<)  on  privileged  communications  has  come 


(<■)  See  Davies  v.  Snea<h  L.  son,  but  was  held   privileged, 

P.   5  Q.  B.    6U8,    and  Webb  v.  as  it  would  have  been  had  it 

East,  5  Ex.  D.  108.  been  correctly  forwarded;  and' 

(d)  7  Q.  B.  D.  619.  Peg.   v.    Perry,   15  Cox,   C.   C. 

(c)  Harrison  v.  Fraser,  29  W.  169.  Huddleston,  B. 
P.    652;    and    see   Toogood   v.         ( f)  Clark  v.  Molvneiix,  3  Q. 

Spy  ring,  1  C.  M.  &  R.  181;  and  B.  D.  2-16. 

see  Tompson  v.    Dashwood.  11         (a)  Cooke  v.  Wildes,  5  E.  & 

Q.  B.  D.  43;. 52  L.  J.,  Q.  B.  425;  B.  328. 

48  L.  T.  943,  D.,  where  the  let-         (//)  Botterill    r.   Whytehead, 

ter  was  sent  to  the  wrong  per-  41  L.  T.  588. 


340 


PRIVILEGED    COMMUNICATIONS. 


( Jhurcharchi 
ed  are. 


Newspapers. 


Newspaper 
reports  of 
certain  meet- 
ings privileg- 
ed. 


Privilege  to 
be  exercised 
with  judg- 
ment. 


before  the  Exchequer  Division.  It  having  been  determined  to 
restore  Skirlaugh  Church,  an  ancient  Gothic  edifice  near  Hull, 
the  committee  were  thinking  of  putting  the  work  in  the  hands 
ofBotterill  &  Co.,  some  Hull  architects,  when  they  received  a 
memorial  from  the  defendant,  a  clergyman,  a  resident  in  the 
neighbourhood,  and  a  member  of  the  Society  for  the  Protection 
of  Ancient  Buildings  and  Monuments,  recommending  them  not 
to  do  so,  as  Botterill  &  Co.  were  Wesleyans,  and  knew  nothing 
about  church  architecture.  It  was  considered  that  this  letter  of 
the  aesthetic  clergyman  was  not  entitled  to  any  particular  privi- 
lege, and  the  architects  were  allowed  to  keep  the  verdict  with 
substantial  damages  which  the  jury  had  given  them. 

The  fair  reports  of  newspapers  are  privileged.  But  in  Stevens 
v.  Sampson  (■<)  it  was  held  that  a  true  report  of  the  proceedings 
in  a  Court  of  Justice  sent  to  a  newspaper  by  a  person  who  is  not  a 
reporter  on  the  staff' of  the  newspaper  is  not  privileged  absolutely, 
and  that  if  it  be  sent  from  a  malicious  motive  an  action  will  lie. 
By  the  2nd  section  of  the  Newspaper  Libel  Act,  1881  (k),  it  is 
provided  that  "Any  report  published  in  any  newspaper  of  the 
proceedings  of  a  public  meeting  shall  be  privilege,  if  such  meet- 
ing was  lawfully  convened  for  a  lawful  purpose  and  open  to 
the  public,  and  if  such  report  was  fair  and  accurate,  and 
published  without  malice,  and  if  the  publication  of  the  matter 
complained  of  was  for  the  public  benefit;  provided  always, 
that  the  protection  intended  to  be  afforded  b}r  this  section 
shall  not  be  available  as  a  defence  in  any  proceeding,  if  the 
plaintiff  or  prosecutor  can  show  that  the  defendant  has  refused  to 
insert  in  the  newspaper  in  which  the  report  containing  the  mat- 
ter complained  of  appeared  a  reasonable  letter  or  statement  of 
explanation  or  contradiction  by  or  on  behalf  of  such  plaintiff  or 
prosecutor. ' ' 

It  may  be  remarked  that,  even  when  a  communication  is  pri- 
vileged, it  must  be  made  temperately  and  judiciously.  It  is  one 
thing,  for  instance,  to  make  your  communication  in  a  sealed 
envelope,  and  another  to  make  it  unnecessarily  by  a  telegram, 
which  in  the  course  of  its  transmission  must  of  course  be  read 
and  giggled  over  by  a  number  of  clerks  (7).  In  a  case  (in)  in  Ire- 
land it  appeared  that  the  defendants,  some  seed  merchants,  had 
applied  to  a  customer  for  the  payment  with  a  post-card,  on  which 
was  written — 

•  "  Sir, —  Your  plea  of  illness  for  not  paying  this  trifle  is  mere  moon- 
shine. We  will  place  the  matter  in  our  solicitor's  hands  if  ivc  have 
not  stamps  by  return,  if  it  costs  us  ten  times  the  amount." 

The  customer  brought  an  action  for  libel,  and  the  seed  mer- 


(i)  5  Ex.  D.  53. 

(k)  44  &  45  Vict.  c.  60. 

(/)  Williamson    v.    Freer, 


L. 


R.  9  C.  P.  393. 

(m)  Robinson  v.  Jones,  L.  R. 
Ir.  4  C.  L.  391. 


TORTS    AND    FELONIES.  341 

chants  set  up  the  defence  of  privileged  communication  ;  hut  the 
court,  following  Williamson  v.  Freer,  held  that  the  defendants, 
though  the  communication  might  he  prima  facie  privileged,  had 
gone  beyond  their  rights  in  making  it  by  post-card.  "  It  is  diffi- 
cult,"' said  Palles,  C.B.,  "to  conceive  any  case  in  which  there  can 
be  a  necessity  to  substitute  a  post-card  for  a  closed  letter. 

"Where  a  person  cburts  the  alleged  slander  by  a  question,  the 
occasion  is  privileged  (Palmer  v.  Hummerston,  1  C.  &  E.  36,  Day, 
J.;  and  see  Jones  v.  Thomas,  34  W.  K.  104  D.,  and  Proctor  v. 
Webster,  16  Q.  B.  D.  112). 


Torts  which  are  also  Crimes. 

WELLS  v.  ABRAHAMS.  [134.] 

[L.  R.  7  Q.  B.  554  (1872).] 

Mr.  Wells,  becoming  impecunious,  decided  to  try 
and  borrow  some  money.  He  instructed  his  wife  to 
take  a  quantity  of  jeweller}',  including  a  magnificent 
brooch,  to  the  shop  of  Mr.  Abrahams,  and  get  a  sub- 
stantial loan  on  the  security.  The  negotiations  came' 
to  nothiDg,  and  Abrahams  returned  a  packet  purport- 
ing to  contain  the  jewellery.  When  the  packet  came  to 
be  opened,  there  was  no  brooch  inside,  and  Mrs.  Wells 
charged  Abrahams  with  having  stolen  it.  Instead, 
however,  of  a  prosecution  for  felony,  this  action  of  tro- 
ver was  brought  against  him,  and  a  verdict  was  found 
for  the  plaintiff  for  £150.  The  question  now  was 
whether  the  judge  ought  to  have  nonsuited  the  plain- 
tiff, on  the  ground  that  the  facts  showed  a  felonious 
taking  of  the  brooch,  and  Wellock  v.  Constantine  (n) 
Was  cited.  It  was  held,  however,  that  the  judge  was 
quite  right  in  not  having  nonsuited,  for  he  was  bound 
to  try  the  issues  on  the  record. 


(n)  32  L.  J.  Ex.  285. 


342 


TORTS    AND    FELONIES. 


The  supposed 

rule  and  its 
enforcement. 


Rapes  and 

assaults. 


Wrong  to 
nonsuit. 
Ball's  case. 


View  of 

Bramwell 

J. 


"  It  is  undoubtedly  laid  down  in  the  text-books,"  says  Lush, 
J.,  in  the  leading  ease,  "  that  it  is  the  duty  of  the  person  who  is 
the  victim  of  a  felonious  act  on  the  part  of  another  to  prosecute 
for  the  felony,  and  he  cannot  obtain  redress  by  civil  action  until 
he  has  satisfied  that  requirement  ;  but  by  what  means  thai  duly  is 
in  bt  enforced  we  arc  nowhere  informed.'1'1 

Wellock  !>.  Constantine  was  an  action  by  a  young  woman 
against  her  master  for  an  assault;  but  when  she  came  into  the 
witness-box  her  case  turned  out  to  be  that  she  had  been  raped,  and 
so  the  judge  nonsuited,  telling  her  to  go  and  prosecute  her  mas- 
ter criminally  before  she  asked  a  civil  court  to  give  her  dam- 
ages. 

Wills  v.  Abrahams,  however,  shows  that  a  nonsuit  under  such 
circumstances  is  wrong  ;  and  what  is  the  proper  course,  no  one 
knows.  A  perusal  of  the  judgments  in  the  recent  case  of  Ex  parte 
Ball  (o)  will  show  how  doubtful  and  unsatisfactory  is  the  present 
state  of  the  law.  The  following  remarks  of  Bramwell,  L.J.  (in 
which  James,  L.J.,  said  that  he  entirely  concurred),  though 
rather  long,  are  quite  worth  transplanting  from  the  Reports  into 
a  text  book: — "In  this  case  the  debt  which  is  sought  to  be 
proved  arose  from  the  felonious  act  of  the  bankrupt  in  embez- 
zling the  moneys  of  his  employers.  The  question  is,  whether, 
that  being  so,  and  no  more  having  been  done  than  has  been  done 
towards  prosecuting  the  bankrupt,  the  trustee  in  the  liquidation 
of  Messrs.  Willis  &  Co.,  the  employers,  can  prove  the  debt  in  the 
bankruptcy.  The  law  on  this  subject  is  in  a  remarkable  state. 
For  300  years  it  has  been  said  in  various  ways  by  judges  many 
of  the  greatest  eminence,  without  intimating  a  doubt,  except  in 
one  instance,  that  there  is  some  impediment  to  the  maintenance 
'of  an  action  for  a  debt  arising  in  this  way.  The  doubt  is  that 
which  was  not  so  much  expressed  by  Mr.  Justice  Blackburn,  in 
Wells  v.  Abrahams  (p),  as  to  be  inferred  from  what  he  said.  But 
though  such  an  opinion  has  been  entertained  and  expressed  for 
all  this  time,  there  are  but  two  cases  in  which  it  has  operated  to 
prevent  the  debt  being  enforced.  These  two  cases  are  Wellock 
v.  Constantine  (q)  and  Ex  parte  Elliott  (r).  Wellock  v.  Con- 
stantine has  been  said  to  be  no  authority.  If  I  may  speak  of 
myself,  I  have  no  doubt  I  concurred  in  the  judgment,  or  the 
statement  that  I  did  so  would  have  been  set  right  ;  but  I 
am  sure  I  must  have  done  so  in  the  faintest  way,  not  only 
from  what  I  think  now,  but  from  what  I  am  reported 
to  have  said  then,  and  from  there  being  no  reason  given 
for  the  judgment  which  I  should  have  desired  to  give  if  I 
had  thought  there  were  any  good  ones  to  support  it.  But,  at  all 
events,  there  are  the  opinions  ot  Chief  Baron  Pollock  and  Mr. 


(o)  10  Ch.  Div.  rif.7. 

(p)  Law  Rep.  7  Q.  B.  554. 


(?)  2  H.  &  C.  146. 
(r)  3  Mont.  &A.  110. 


TORTS   AND   FELONIES.  343 

Justice  "Willcs — opinions  which  no  one  who  knew  those  judges 
will  undervalue.  Then  there  is  the  judgment  in  Ex  parte  Elliott, 
besides  the  expressed  opinion  for  centuries  that  the  felonious 
origin  of  a  debt  is  in  some  way  an  impediment  to  its  enforce- 
ment. But  in  what  way  ?  1  can  think  of  only  four  possible 
ways  : — 1.  That  no  cause  of  action  arises  at  all  out  of  a  felony ; 
2.  That  it  does  not  arise  till  prosecution  ;  3.  That  it  arises  on 
the  act,  but  is  suspended  till  prosecution  ;  4.  That  there  is 
neither  defence  to  nor  suspension  of  the  claim  by  or  at  the  in- 
stance of  the  felon  debtor,  but  that  the  court,  of  its  own  motion, 
or  on  the  suggestion  of  the  Crown,  should  stay  proceedings  till 
public  j  ustice  is  satisfied.  It  must  be  admitted  that  there  are 
great  difficulties  in  the  way  of  each  of  these  theories.  That  the 
first  is  not  true  is  shown  by  Marsh  v.  Keating  (s),  where  it  was 
held  that  prosecution  being  impossible,  a  felony 'gave  rise  to  a 
recoverable  debt.  It  is  difficult  to  suppose  that  the  second  sup- 
posed solution  of  the  problem  is  correct.  That  would  be  to  make 
the  cause  of  action  the  act  of  a  felon  plus  a  prosecution.  The 
cause  of  action  would  not  arise  till  after  both.  Till  then  the 
Statute  of  Limitations  would  not  run.  In  such  a  case  as  the 
present,  or  where  the  felon  had  died,  it  would  be  impossible. 
And  it  is  to  be  observed  that  it  is  never  suggested  that  the  cause 
of  action  is  the  debt  and  the  prosecution.  The  suspension  of  a 
action  is  a  thing  nearly  unknown  to  the  law.  It  exists  where  a  • 
negotiable  instrument  is  given  for  a  debt,  and  in  cases  of  com- 
positions with  creditors,  and  these  were  not  held  till  after  much 
doubt  and  contest.  There  may  be  other  instances.  And  what 
is  to  happen  ?  Is  the  Statute  of  Limitations  to  run  ?  Suppose 
the  debtor  or  his  representative  sue  the  creditors,  is  his  set-off 
suspended  ?  Then  how  is  the  defence  of  impediment  to  be  set 
up?  By  plea?  That  would  be  contrary  to  the  rule,  nemo 
allegans  suam  turpitudinem  est  audiendus.  Besides,  it  would  be 
absurd  to  suppose  that  the  debtor  himself  ever  would  so  plead 
and  face  the  consequences.  Then  is  the  fourth  solution  right  ? 
Nobody  ever  heard  of  such  a  thing  ;  nobody  in  any  case  or  book 
ever  suggested  it  till  Mr.  Justice  Blackburn  did  as  a  possibility. 
Is  it  left  to  the  court  to  find  it  out  on  the  pleading  ?  If  it  ap- 
pears on  the  trial  is  the  judge  to  discharge  the  jury  ?  How  is 
the  Crown  to  know  of  it  ?  There  are  difficulties,  then,  in  all  the 
possible  ways  in  which  one  can  suppose  this  impediment  to  be 
set  up  to  the  prosecution  of  an  action.  But,  again,  suppose  it 
can  be,  what  is  the  result?  It  has  been  held  that  when  the  felon 
is  executed  for  another  felony  the  claim  may  be  maintained. 
What  is  to  happen  when  he  dies  a  natural  death,  when  he  goes 
beyond  the  jurisdiction,  when  there  is  a  prosecution  and  an  ac- 
quittal from  collusion  or  carelessness  by  some  prosecutor  other 

(s)  1  Bing.  N.  C.  198. 


344 


TORTS    AND    FELONIES. 


than  the  party  injured  ?  All  these  cases  create  great  difficulties 
to  my  mind  in  the  application  of  this  alleged  law,  and  go  a  Ling 
way  to  justify  Mr.  Justice  Blackburn's  doubt.  Still,  after  the 
continued  expression  of  opinion,  and  the  cases  of  Ex  parte  Elliott 
(/)  and  XVellock  v.  Constantine  (w),  I  should  hesitate  to  say  that 
there  is  no  practical  law  as  alleged  by  the  respondent." 
Leslie's  case.  The  still  more  recent  case  of  Ex  parte  Leslie  (x)  in  itself  hardly 
touches  the  point.  Some  bankers  allowed  a  customer  to  over- 
draw, on  his  depositing  some  acceptances  which  turned  out  to  be 
forgeries,  and  the  question  was  whether  they  could  prove  in  his 
subsequent  bankruptcy  without  having  prosecuted.  "We  have 
been  referred,"  said  Jessel,  M.  R.,  with  whom  the  rest  of  the 
court  agreed,  "to  a  line  of  authorities  which  seem  to  show  that 
when  a  claim  arises  out  of  a  felony,  you  cannot  sue  for  it  until 
you  have  prosecuted  the  felon,  or  some  one  else  has  prosecuted 
him,  or  a  prosecution  has  become  impossible.  That  may  or  may 
not  he  so;  I  do  not  wish  to  discuss  that  question  on  the  present  oc- 
casion. But,  assuming  that  it  is  so,  the  rule  has  no  application 
to  the  present  case,  in  which  the  claim  is  founded  on  an  inde- 
pendent contract  antecedent  to  the  corrupt  bargain." 

It  is  to  be  observed  that  the  rule  only  applies  when  the  action 
is  against  the  person  guilty  of  the  felony.  It  does  not  prevent 
anyone  from  suing  an  innocent  third  party.  If  somebody  has 
stolen  my  books  and  sold  them  to  a  bookseller,  I  may  bring  an 
action  of  trover  against  the  bookseller,  though  I  have  not  made 
the  faintest  attempt  at  prosecuting  the  thief  {y). 

It  is  also  to  be  observed  that  the  rule  applies  only  to  felonies. 
For  a  misdemeanour,  such  as  assault  or  libel,  the  aggrieved  per- 
son may  bring  an  action,  quite  regardless  of  the  fact  that  the 
defendant  is  really  a  criminal. 

Moreover,    an   action   under    Lord   Campbell's   Act    may   be 
brought,  "although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  felony"  (z). 
Public  There  are  other  cases  in  which  the  right  of  bringing  an  action 

policy.  is  restrained  on  grounds  of  publicpolicy.     Xoaction  forinstance, 

lies  against  a  commanding  officer  for  acts  done  in  the  ordinary 
course  of  military  discipline  (a).     "The  salvation  of  this  country,'''' 


Doubt  sug- 
gested by 
Jessel,  XI.  I.'., 
as  to  exist- 
ence of  rule. 

Action 

against  third 
party. 


Rule  does 
not  apply  to 
misdemean- 
our. 

Campbell's 
Act. 


(/)  3  Xlont.  &  A.  110. 

(w)  2  H.  &  C.  146. 

(*)  20  Ch.  Div.  131  ;  and  see 
Eoopet?.  D'Avigdor,  10  Q.  B.  D. 
412,  where  it  was  decided  that 
a  statement  of  claim  is  not  de- 
murrable on  the  ground  that  it 
shows  the  cause  of  action  to  be 
a  felony. 

(y)  White  v.  Spettigue,  13X1. 
&  XV.  (»03  ;  and  see  Osborn  v. 
Gillett,  L.  R.  8  Ex.  88  ;  Lee  v. 
Bayes,  18  C.  B.  599  ;  and  Stone 


v.  Marsh,  G  B.  &  C.  551  ;  and 
see  Gimson  ».  Woodfall,  2  C.  & 
P.  41 ;  Quinlan  v.  Barber,  Batty's 
Irish  Rep,  47  ;  Crosby  v.  Leng, 
12  East,  413  ;  Hughes  v.  Smith, 
Smith  &  Batty's  Irish  Rep.  378. 

(z)  9  &  10  Vict.  c.  93,  s.  1. 

(a)  Johnstone  v.  Sutton,  1  T. 
R.  493  ;  and  see  Dawkins  v. 
Rokeby,  4  F.  &  F.  806  ;  Daw- 
kins  v.  Paulet,  L.  R.  5  Q.  B. 
94  ;  and  Freer  r.  Marshall,  4  F. 
&F.  485  ;  and  see  The  Midland 


PRIVITY.  345 

said  the  court  in  Johnstone  v.  Sutton  (6),  " depends  upon  ihe  dis- 
cipline of  the  fleet.  .  .  .  If  this  action  is  admitted,  every  ac- 
quittal before  a  court-martial  will  produce  one." 

In  the  recent  case  of  Appleby  v.  Franklin  (b),  a  paragraph  in 
a  statement  of  claim  which  alleged  that  the  defendant  after  se- 
ducing the  plaintiff  administered  to  her  certain  noxious  drugs 
for  the  purpose  of  procuring  abortion,  was  lately  reinstated,  when 
a  master  had  struck  it  out  on  the  ground  that  it  disclosed  a  fel- 
ony tor  which  the  defendant  should  have  been  criminally  prose- 
cuted. 


Privity. 

LANG-RIDG-E  v.  LEVY.  [135.] 

[4  M.  &  W.  337  (1838).] 

Mr.  Langridge,  senior,  walking  one  day  down  the 
streets  of  Bristol,  noticed  a  gun  in  a  shop  window  with 
the  following  seductive  advertisement  tied  round  its 
muzzle: — 

"  Warranted,  this  elegant  hoist  gun  by  Nock,  with 
case  complete,  made  for  his  late  Majesty  George  IV.; 
cost  60  guineas;  can  be  had  for  25." 

He  entered  the  shop,  which  was  the  defendant's,  and 
told  him  he  wanted  a  nice,  quiet,  steady-going  gun  for 
the  use  of  himself  and  his  sons.  Finally,  he  bought 
the  elegant  twist  gun  as  warranted. 

Now,  we  regret  to  say,  this  warranty  was  false  and 
fraudulent  to  the  defendant's  knowledge,  and,  shortly 
after  the  purchase,  one  of  the  young  Langridges  was 
using  the  gun  in  a  perfectly  fair  and  sportsmanlike 
manner,  when  it  burst  and  blew  off  his  left  hand. 

It  was  this  victim  of  Levy's  dishonesty  who  now 
brought  an  action  against  him,  and  the  chief  point  re- 
lied on  by  the  defendant's  counsel  was  that,  if  any  one 
had  a  right  to  bring  an  action,  it  was  the  father,  to 
whom  the  gun  had  been  sold;  as  for  the  son,  they  said, 

Insurance  Co.  v.  Smith,  a  fire  been  prosecuted;  and  Hurst  v. 
insurance  case,  where  it  was  Taylor,  14  Q.  B.  D.  918. 
decided  that  the  action  was  (b)  Supra.  Appleby  v. Frank- 
maintainable  in  spite  of  a  fel-  lin,  54  L.  T.  Reports,  N.  S. 
ony  having  been  the  cause  of  135;  Weekly  Notes,  1885,  p. 
action  and  the  felon  had  not  220, 


:;t<; 


PRIVITY. 


False  repre- 
sentation, 
when  action- 
able. 


Privity  not 
always 

necessary  to 
support  an 
action  in 
tort. 


Poisonous 
hair-wash. 


there  was  no  privity  of  contract  between  him  and  the 
gunsmith.  This  defence,  however,  did  not  succeed, 
and  the  youthful  Langridge  got  as  much  consolation  as 
money  could  give  him  for  the  loss  of  his  hand. 

The  decision  in  this  case  depended  so  much  upon  the  special 
circumstances  that  there  can  be  deduced  from  it  no  wider  prin- 
ciple than  this,  that  he  who  knowingly  makes  a  false  statement, 
intending  others  to  act  upon  it,  is  liable  for  any  damage  resulting 
to  any  one  to  whom  it  may  have  been  intended  to  be  communi- 
cated, and  who  has  in  fact  acted  upon  it  (c).  The  decision  pro- 
ceeded upon  the  ground  of  the  knowledge  and  fraud  of  defend- 
ant (d). 

A  particular  transaction  may  sometimes  be  looked  at  as  afford- 
ing the  right  to  bring  an  action  either  for  the  breach  of  contract 
or  in  tort.  Take,  for  instance,  the  too  familiar  case  of  a  railway 
disaster  caused  by  the  company's  negligence:  the  company  are 
liable  to  the  passenger,  in  contract,  because  they  gave  him  a 
ticket,  and  in  tort,  because  they  were  not  sufficiently  careful  in 
carrying  him.  In  such  a  case  as  this  there  is  clearly  direct  pri-  • 
vity  between  the  plaintift  and  the  defendants. 

But,  generally  speaking,  privity  is  not  necessary  to  support  an 
action  in  tort.  In  Langridge  v.  Levy  the  person  with  whom  the 
contract  was  made,  and  with  whom  alone  there  was  privity,  was 
the  father,  and  yet  the  son  was  allowed  to  bring  an  action  and 
recover  damages.  The  reason  of  this  is  that  Levy  had  been 
guilty  of  a  tort  in  making  a  false  representation.  If  he  had 
made  no  false  representation  he  would  have  only  been  liable  to 
the  father  for  breach  of  contract.  As  it  wras,  he  was  held 
liable  to  the  son,  who  confided  in  the  representation,  and  who, 
he  knew,  was  going  to  use  it.  It  is  to  be  observed,  however, 
that  if  the  plaintiff  had  been  a  friend  of  the  family  whose  use  of 
the  gun  was  not  contemplated  by  Levy  at  the  time  of  the  sale, 
no  action  could  have  been  successfully  maintained  (e).  George 
v.  Skivington  (/),  where  a  chemist  sold  some  poisonous  hair- 
wash  ior  the  use  of  a  customer's  wife,  is  a  subsequent  case  ana- 
logous to  Langridge  v.  Levy,  with  the  substitution  (per  Cleasby, 
B.)  of  negligence  for  fraud. 

In  Blakemore  v.  Bristol  and  Exeter  Railway  Co.  (g)  the  court 


(c)  See  Pasley  v.  Freeman,  p. 
312. 

(d)  Wiuterbottom  v.  Wright, 
10  M.  &  W.  109;  and  see  Haigh 
v.  Royal  Mail  Steam  Packet 
Co.,  52  L.  J.,  Q.  B.,  640,  C.  A.., 
affirming  52  L.  J.,  Q.  B.,  39.",; 
48  L.  T.  267;  5  Asp.  M.  C.   47 


D. ;  Hurst  v.  Taylor,  14  Q.  B. 
D.  918:  54  L.  J.,  Q.  B  ,  310;  33 
W.  R.  582;  49  J.  P.  359— D. 

(e)  Parry  v.  Smith,  4  C.  P. 
D.  325 ;  but  see  Collis  v.  Selden, 
L.  R.  3  C.  P.  495. 

(/)  L.  R.  5  Exch.  1. 

(g)  8  E.  &  B.  1035. 


PRIVITY.  347 

declared  that  it  had  always  been  considered  that  Langridgc  v. 
Levy  was  not  to  be  extended  in  its  application. 

The  case  of  Langridgc  v.  Levy  and  George*.  Skivington  must  A  dangerous 
be  distinguished  from  Longmeid  v.  Holliday  (h),  where  a  trades-  kmip. 
man,  in  all  honesty,  warranted  a  defective  lamp  to  he  sound.  The 

lamp  exploded  and  injured  a  person  who  was  not  a  privy  to  the 
contract,  but  whose  use  of  the  lamp  had  been  contemplated  by 
the  seller.  This  person,  it  was  held,  could  not  maintain  an  action 
against  him  ;  not  in  contract,  because  the  plaintiff  was  not  privy 
to  the  warranty  ;  not  in  tort,  because  the  defendant,  saying  only 
what  he  believed  to  be  true,  was  not  guilty  of  any  tort. 

And,  generally,  when  a  wrong  is  founded  on  a  contract,  no  one  ^\Tron<r 
not  a  privy  to  the  contract  can  sue  in  respect  of  such  wrong.  A  founded  oh 
master,  for  instance,  who  had  had  nothing  to  do  with  the  taking  contract. 
of  the  ticket,  and  was  not  in  any  way  a  party  to  the  contract, 
could  not  sue  a  railway  company  for  loss  of  the  services  of  one  of 
his  servants  as  for  a  breach  of  their  contract  with  the  man  to 
carry  him  safely  (/).  But  if  a  railway  company  contract  with  a 
master  to  carry  his  servant,  and  in  doing  so  are  guilty  of  negli- 
gence, which  causes  bodily  hurt  to  the  servant  and  consequent 
damage  by  loss  of  service  to  the  master,  the  company  may  be  Pure  tort, 
sued  in  contract  by  the  master  and  in  tort  by  the  servant  (k). 
The  recent  case  of  Berringer  v.  Great  Eastern  Railway  Co.  (/)  de- 
serves attention .  It  was  an  action  by  a  father,  a  butcher,  for 
loss  of  the  services  of  his  son,  who  had  helped  him  in  the  shop. 
The  boy  had  taken  a  ticket  from  the  London.  Tilbury,  and  South- 
end Railway  Co.,  and  was  injured  at  Stepney  by  the  negligence 
of  the  defendant  company.  The  point  was  raised  for  the  defence 
that  there  was  no  privity  of  contract  between  the  plaintiff  and 
the  defendants.  But  the  court  held  that  the  claim  was  valid, 
saying,  "The  claim  is  against  the  company,  not  parties  to  the 
contract  of  carriage,  for  a  pure  tort,  such  as  would  be  committed 
if  a  vehicle  in  the  highway  were  wrongfully  driven  against,  or 
across  the  path  of,  another  vehicle,  whereby  a  servant  therein 
was  hurt  and  his  master  lost  his  services."  See  also  the  note  to 
Thomas  v.  Rhymney  By.  Co.,    p.  287  ;  and  read  the  case  of  Heaven 

(h)  6  Exch.  761  ;  and  see  also  L.  J.,  C.  P.,  292. 

the  important  case  of  Heaven  v.  (k)  Marshall  v.  York,  &c,  Ry. 

Pender,  11  Q.  B.  D.  503  ;  52  L.  Co.,  11  C.  B.  655  ;  and  see  also 

J.  Q.  B.,  702  ;  49  L.  T.  357  ;  47  the  case  of  Werderman  r.   So- 

J.  P.  709  C.  A.,  reversing  9  Q.  ciete  Generate  de  l'Electricite, 

B.  D.  302  ;  51  L.  J.,  Q.  B.,  465;  19  Ch.  D.  246,  which  wasacase 

47  L.  T.  163  ;  30  W.  R.  749 ;  47  where   a   patent  was   assigned 

J.  P.  87 — D. ;  and  as  to  liability  by  the  plaintiff  to  a  person  who 

for  representations,  see  Barry  v.  made  over  the  patent  to  a  com- 

Crosskey,  2  J.  &H.  23  ;  Peck  v.,  pany,  who  were  held  liable  in 

Gurnev.  L.  R.  6  H.  L.  412.  contract  to  the  plaintiff. 

(i)  Alton  v.  Midi.  Ry.  Co.,  34  (I)  4  C.  P.  D.  163. 


348  PRIVITY. 

r.  render,  cited  ante;  and  see  Elliott  v.  Hall,  15  Q.  B.  D.  315,  injury 
to  servant  of  vendee  ;  and  Jewson  v.  Gatti,  1  C.  &  E.  56'4,  L>ay, 
J.,  occupier  of  premises  and  strangers  ;  and  Norris  v.  Catmur,  1 
C.  &  E.  57G,  landlord  and  sub-tenant. 


Actions  against  Magistrates. 


[136.]  OREPPS  v.  DURDEN. 

[Cowp.  640  (1777).] 

It  was  very  wrong,  of  course,  of  Peter  Crepps  to  be 
selling  hot  rolls  on  a  Sunday  morning  instead  of  being 
at  church,  and  as  it  could  not  well  be  called  a  "  work  of 
necessity  and  charity,"  it  was  no  doubt  a  violation  of 
the  Act  of  Charles  II.  of  pious  memory.  But  the  Act 
provides  for  a  fine  of  5s.  only  to  be  inflicted  on  the  of- 
fender, and,  therefore,  that  worthy  magistrate  of  West- 
minster, Mr.  Durden,  had  no  business  whatever  to  say 
that  because  Crepps  had  sold  four  hot  rolls  he  should 
be  fined  £1 — that  is  to  say,  5s.  a  roll.  This  was  dis- 
tinctly laid  down  to  him  by  Lord  Mansfield  :  "  The  pen- 
alty incurred  by  this  offence  is  5s.  There  is  no  idea 
conveyed  by  the  Act  that  if  a  tailor  sews  on  the  Lord's 
Day  every  stitch  he  takes  is  a  separate  offence. 
There  can  be  but  one  entire  offence  on  one  and  the  same 
day." 

Mjjuea  i  But  xn  Milnes  v.  Bale  (m)  it  was  held  that,  where  a  person  has 

Bale.  been  guilty  of  several  acts  of  bribery  at  a  municipal  election,  he 

is  liable  to  a  penalty  in  respect  of  each  such  act  of  bribery.  "Va- 
rious decisions,"  said  Brett,  J.,  "  were  cited  as  authorities  in  fa- 
vour of  the  contention  that  there  can  be  only  one  penalty.  If  I 
understand  the  effect  of  these  cases  rightly,  in  every  case  where 
it  was  held  that  there  could  only  be  one  penalty  in  respect  of 
several  acts,  it  was  because  all  the  acts  only  constituted  one  of- 
fence against  which  the  penalty  was  enacted.     The  test,  as  it 

(m)  L.  E.  10  C.  P.  591.    • 


ACTIONS    AGAINST   MAGISTRATES.  34!) 

appears  to  me  is,  whether,  having  charged  the  offence  against 
which  the  penalty  is  enacted,  you  can  prove  it  by  giving  in  evi- 
dcncejseveral  distinct  acts  committed  by  the  person  charged.  It 
is  not  strictly  accurate  to  speak  of  the  penalties  as  cumulative  in 
such  a  case  as  the  present.  The  questiou  is,  whether  there  is  one 
or  more  offences,  and  if  the  offences  are  distinct,  there  is  only 
one  penalty  for  each  offence.  I  cannot  find  that  in  any  case  in 
which  each  act  done  was  a  complete  offence  in  itself,  and  in 
which  it  would  have  been  inadmissible  to  give  other  acts  in  proof 
of  the  committal  of  the  same  offence,  it  was  held  that  several 
penalties  could  not  be  inflicted.  In  the  case  of  Reg.  v.  Scott  (a), 
the  effect  of  the  decision  seems  to  me  to  be  this:  where  several 
oaths  are  made  use  of  on  one  occasion  it  is  but  one  swearing, 
and  consequently  there  is  only  one  offence,  and  only  one  penalty 
is  incurred,  though  such  penalty  is  cumulative,  being  at  the  rate 
of  two  shillings  for  each  oath;  but  if  the  same  set  of  oaths  were 
used  on  distinct  oecasions,  though  they  all  occurred  on  the  same 
day,  there  would  be  several  offences,  and  a  penalty  would  be  in- 
curred for  each  distinct  swearing.  There  is  no  decision  that  if  a 
man  swore  at  one  person  at  one  time  of  the  day,  and  at  another 
person  another  time,  he  would  not  be  liable  to  two  penalties.  It 
seems  to  me  that  in  such  a  case  he  would  be  liable  to  two  penal- 
ties because  there  would  be  two  offences.  In  Garrett  v.  Messen- 
ger (o)  the  offence  charged  was  keeping  open  an  unlicensed  house. 
It  is  not  keeping  it  open  for  an  hour  that  is  the  offence;  the  offence  . 
is  the  keeping  a  house  to  be  used  as  a  house  of  entertainment 
without  a  license  which  is  a  comprehensive  offence,  to  be  proved 
by  many  acts.  According  to  the  case  of  Marks  r.  Benjamin  (p), 
it  is  necessary  in  the  case  of  a  charge  of  this  sort  to  give  evidence 
of  more  than  having  the  house  open  for  a  short  period,  or  in  a 
particular  instance.  In  sucli  a  case  a  penalty  cannot  be  imposed 
for  each  act,  because  each  act  is  not  a  separate  offence.  So  in, 
Pilcher  v.  Stafford  (q)  the  ground  of  the  decision  was  that  there, 
was  only  one  offence,  viz.,  leaving  a  child  unvaccinated  for  a  cer- 
tain period,  and  consequently  there  could  only  be  one  penalty. 
Again,  in  Crepps  v.  Burden,  the  offence  contemplated  was  exer- 
cising the  party's  ordinary  calling  on  Sunday.  It  was  not  the 
doing  of  one  isolated  act  that  would  be  evidence  of  the  com- 
mittal of  the  offence,  but  several  acts  might  be  given  in  evidence- 
to  prove  one  offence.  All  these  decisions  are  inapplicable  to  the 
present  case,  because  each  act  of  bribery' is  a  complete  offence  in 
itself." 

As  to  actions  against  magistrates,  the  student  is  referred  to  1 1  Actions 
&  12  Vict.  c.  44,  "An  Act  to  protect  justices  of  the  peace  from  against 
vexatious  actions  for  acts  done  by  them  in  the  execution  of  their  ^us  lce! 

(»)  4  B.  &  S.  368.  ( p)  5  M.  &  W.  565. 

(o)  Law  Rep.  2  C.  P.  583.  (j)4B.  S.  775. 

24   COMMOX   LAW. 


350  ACTIONS    AGAINST    MAGISTRATES. 

office"  (r).  It  is  sufficient  here  to  point  attention  to  the  first  two 
sections  of  this  Act,  which  provide  that  if  the  act  complained  of 
was  done  by  the  magistrate  as  to  any  matter  within  his  jurisdiction, 
the  plaintiff  must  show  that  he  acted  maliciously  and  without  rea- 
sonable and  probable  cause,  and  that  if  it  was  done  in  a  matter  in 
which  the  magistrate  had  no  jurisdiction,  or  if  he  exceeded  his  juris- 
diction, the  plaintiff  must  show  that  the  conviction  or  order  has 
been  quashed. 

Other  sections  of  this  Act  specify  the  time  within  which  the 
action  is  to  be  brought,  the  notice  of  action  required,  the  way 
and  effect  of  tendering  amends,  &c,  and  in  various  other  ways 
the  justice  of  the  peace  is  hedged  about  and  protected  against 
litigious  evil-doers. 
Claim  of  It  may  be  mentioned  that  the  jurisdiction  of  justices  at  petty 

right.  sessions  is  generally  ousted  if  a  bond  fide  claim  of  right  is  put 

forward  by  the  defendant.  This  subject,  however,  is  not  suffi- 
ciently connected  with  nisi  prius  to  be  worth  dealing  with  at  any 
length  here;  and  the  reader  is  referred  to  the  following  cases  : — 
Hargreaves  v.  Diddams,  L.  R.  10  Q.  B.  582;  Reg.  v.  Pearson,  39 
L.  J.  M.  C.  76;  White  r.  Fox,  49  L.  J.  M.  C.  GO;  White  v.  Feast, 
L.  R.  7  Q.  B.  353;  Denny  v.  Thwaites,  35  L.  T.,  N.  S.,  G28 ; 
Reece  v.  Miller,  8  Q.  B.  D.  626  ;  and  Pearce  v.  Scotcher,  9  Q. 
B.  D.  162;  R.  v.  Young,  Ex  parte  White,  52  L.  J.  M.  C.  55,  47  J. 
P.  519. 


Notice  of  Action. 


[137.]  ROBERTS  v.  ORCHARD. 

[2  H.  &C.  769  (1864).] 

Mr.  Orchard  was  a  draper  in  Argyle  Street,  London, 
and  the  plaintiff  had  been  one  of  his  shopmen.  While 
so  employed,  Mr.  Orchard  suspected  him  of  helping 
himself  to  a  florin  on  a  certain  occasion,  and  gave  him 
into  custody.  The  magistrates,  however,  thought  there 
was  no  evidence  against  the  man,  and  at  once  discharged 
him.     This  was  an  action  for  assault  and  false  imprison- 

(r)  See  also  recent  case  of  Clew  v.  Hale,  W.  N.  Nov.  25th,  1882. 


NOTICE    OF    ACTION.  351 

merit,  and  the  great  question  was  whether  the  defend- 
ant ought  to  have  had  notice  of  action,  as  provided  by 
24  &  25  Vict.  c.  90,  s.  113.  That  Act  of  Parliament 
says  that  any  person  " found  committing"  any  offence 
punishablo  by  virtue  of  that  Act.  with  the  exception  of 
angling  in  the  day-time,  may  bo  immediately  appre- 
hended without  a  warrant.  It  was  held  that  it  was  not 
sufiicient  to  entitle  the  defendant  to  notice  of  action 
that  he  believed  the  plaintiff  to  have  dishonestly  taken 
the  florin ;  he  was  not  entitled  to  such  notice  unless  he 
believed  that  the  plaintiff  had  been  "found  committing''^ 
the  offence.  The  proper  question  to  be  left  to  the  jury 
in  such  a  case  was — Did  the  defendant  honestly  believe 
in  the  existence  of  those  facts,  which,  if  they  had  ex- 
isted, would  have  afforded  a  justification  under  the 
statute  ? 

A  great  number  of  statutes,  with  the  object  of  protecting  per- 
sons rilling  public  offices  or  discharging  public  duties,  require 
that  a  month's  notice  shall  be  given  before  an  action  can  be  com- 
menced against  them. 

As  to  the  form  of  the  notice,  the  statute  requiring  it  should  in  porm  0f 
each  instance  be  consulted.     Speaking  generally,  however  it  may  notice, 
be  said  that  it  is  sufficient  if  it  conveys  to  the  mind  of  the  de- 
fendant reasonable  information  of  what  the  complaint  is.     In  a 
recent  case  a  man  went  to  law  with  a  Lancashire  Local  Board  for 
an  injury  to  his  horse,  caused  by  part  of  the  road  over  which  it 
was  being  driven  suddenly  giving  way  (s).     In  the  notice  of  ac- 
tion which,  by  the  Public  Health  Act,  1848  (11  &  12  Vict.  c.  63), 
he  was  bound  to  give,  the  plaintiff  only  complained  of  the  de- 
fendants' non-feasance,  whereas  he   was  really  suing  them  for 
wn'.s-feasance.     But  it  was  held  that  the  notice  was  sufficient  in 
spite  of  the  omission.      "  The  object  of  a  notice  of  action,"  said 
the  court,  "  is  to  enable  a  party  to  tender  amends  ;  and  therefore 
it  is  sufficient  if  it  states  substantially  the  nature  of  the  com- 
plaint.    In  the  recent  case  of  Green  v.  Broad  (0  an  inaccuracy  as  inaccurate 
to  the  date  of  arrest  in  a  notice  under  24  &  25  Vict.  c.  96,  s.  113,  date, 
was  held  to  be  pardonable,  and  the  judge  who  had  nonsuited  in 
consequence  to  be  wrong. 

In  the  absence  of  agreement  as  to  the  amount  and   mode  of  g0iicjt0r 
payment  (it),  a  solicitor  cannot  begin  an  action  for  his  fees  till  a  suing  for 


costs. 


(s)  Smith  v.  West  Derby  Lo-         («)  See  33  &  34  Vict.  c.  28, 
cal  Board.  3  C.  P.  D.  423.  s.  15. 

(0  73  L.  T.  141. 


352  NOTICE    OF    ACTION. 

calendar  month  after  he  has  sent  in  a  signed  hill  of  costs  (x).  The 
client,  however,  to  whom  an  unsigned  bill  is  delivered  may  waive 
the  want  of  signature  and  adopt  it  [y). 

In  Stone  v.  Hyde  it  was  decided  that  the  notice  of  action  under 
sec.  7  of  the  Employers  Liability  Act,  1880  (43  &44  Vict.  c.  42), 
need  not  be  expressed  in  strictly  technical  language  ;  it  is  enough 
if  it  substantially  conveys  to  the  mind  of  the  person  to  whom  it 
is  given,  the  name  and  address  of  the  person  injured  and  the 
cause  and  the  date  of  the  injury.  A  letter  from  the  plaintiffs 
solicitor  gave  only  the  date  of  the  injury,  and  stated  that  the 
plaintiff  was  and  had,  for  sometime  past,  been  under  treatment 
at  a  hospital  '''for  injury  to  his  leg."  This  defect  iu  the  notice 
did  not  render  it  invalid  (z). 

In  Foat  v.  Mayor,  &c,  of  Margate,  it  was  laid  down  that  in  an 
action  for  the  recovery  of  land  one  month's  notice  need  not  be 
given  to  the  local  authority,  as  is  the  statutory  rule  in  other 
cases.  It  being  decided  that  sec.  264  of  the  Public  Health  Act 
1875,  does  not  apply  to  actions  for  the  recovery  of  land  (a). 

A  constable  acting  under  the  Contagious  Diseases  (Animals) 
Act  is  not  entitled  to  notice  of  action,  as  1  &  2  Will.  IV.,  c.  41 
applies  only  to  cases  where  the  authority  by  which  a  constable 
acted  was  given  by  the  common  law  or  by  some  statute  existing 
when  1  &  2  Will.  IV.,  c.  41,  was  passed  (6). 


[138.] 


Malicious  Prosecution. 

PERRYMAN  v.  LISTER, 
[L.  R.  4  H.  L.  521  (1870).] 

Mr.  Lister  was  the  owner  of  a  rifle,  which  was  left 
under  the  charge  of  his  coachman,  Hinton.  One  day  a 
man  named  Perryman  happened  to  call  on  Hinton,  and, 

(x)  6  &  7  Vict.,  c.  73.  s.  37.  son  v.  Musgrave,  9Q.  B.  D.  386. 

(V)  Inre  Gedve,  14  Beav.  56;  (a)  11  Q.  B.  D.  299;  52  L.  J., 

and  Billing  v.  Coppoek,  16  L.J.  Q.  B.,  711 ;  47  J.  P.  535  D. ;  and 

Ex.  265,  and  see  Ingle  v.  Me-  see  Midland  Ry.  Co.  v.  Witning- 

Cutchan,  11  Q.  B.  D.  518;  53  L.  ton  Local  Board,   11   Q.   B.   D. 

J.,  Q.  B..   311;  Penley   v.   An-  788:  52  L.  J.,  Q.  B.,  689,  49  L. 

struther,  52  L.  J.  Ch.  367  ;  48  T.  489;  47  J.  P.  789  C.  A. 

L.  T.  664.  (b)  Bryson  v.   Russell,  14  Q. 

(z)  9  Q.  B.  D.  76,  and  Clark-  B.  D.  720. 


MALICIOUS    PROSECUTION.  353 

seeing  the  rifle,  exclaimed  what  a  capital  one  it  was, 
"and  how  much  he  would  like  to  have  just  such  an- 
other. Not  long  afterwards  the  rifle  was  missed. 
Hinton  reported  the  loss  to  his  master,  and  at  the 
same  time  informed  him  that  one  Robinson,  the  coach- 
man of  a  gentleman  living  in  the  neighbourhood,  had 
seen  it  in  a  barn  where  Perryman  lived,  and  had  asked 
him  what  he  was  doing  with  Lister's  gun;  to  which 
Perryman  had  replied,  "It  is  not  Lister's  gun;  it  is  my 
gun;"  but  that  Robinson  said  he  was  sure  the  gun  he 
saw  was  the  one  Lister  had  missed.  Hinton  added 
that  he  had  since  gone  with  Robinson  to  Perryman's 
and  had  been  shown  a  gun  which  was  not  Lister's,  and 
which  Perryman  said  was  the  only  gun  he  had.  Per- 
ryman, having  been  tried  and  acquitted  on  the  charge 
of  stealing  the  rifle,  now  brought  an  action  for  false 
imprisonment.  The  judge  at  the  trial  directed  the 
jury  that,  as  Lister  had  not  seen  Robinson  before  caus- 
ing Perryman  to  be  arrested,  he  had  acted  on  hearsay 
evidence  alone,  and  without  "reasonable  and  probable 
cause."  This,  however,  was  held  to  be  a  misdirection, 
on  the  ground  that  Lister  had  "  reasonable  and  prob- 
able cause  "  for  instituting  a  prosecution;  and  the  prin- 
ciple was  distinctly  affirmed  that  it  is  for  the  jury  to 
find  the  facts  on  which  the  question  of  reasonable  and 
probable  cause  depends,  but  for  the  judge  to  determine 
whether  the  facts  found  do  constitute  reasonable  and 
probable  cause. 


In  an  action  for  malicious  prosecution  the  plaintiff  must  prove  Four  points, 
four  things: — 

(1.)   That  the  defendant  preferred  a  criminal  charge  against  him  j.  Theprose- 
before  a  judicial  officer.  cution. 

But  if  a  person,  acting  conscientiously  and  like  an  honest  man, 
comes  before  a  magistrate  and  makes  his  complaint,  and  the 
magistrate  foolishly  treats  as  a  felony  what  is  really  only  a  civil 
matter,  and  issues  his  warrant  accordingly,  the  person  making  Danby  v. 
the  complaint  is  not  answerable  for  the  magistrate's  mistake  (c).  Beardsley. 

(c)  Leigh  v.  Webb,   3  Esp.   165;  Wyatt  v.  White,  5  H.  &  N. 
371 ;  and  see  Clarke  v.  Postan,  6  C.  &  P.  423. 


.l.M 


MALICIOUS    PROSECUTION. 


2.  Malice. 


Subsequent 
malice. 


3.   Reason- 
able and 
probable 
cause. 


I  licks  v. 
Faulkner. 


So  where  a  doctor  in  Lancashire,  having  missed  two  pairs  of 
horse  clippers  from  his  stables,  sent  for  a  policeman,  and  said, 
"  /  haw.  had  two  pairs  of  clippers  stolen  from  me,  and  they  were  last 
seen  in  the  possession  of  Danby,"  whereupon  the  policeman,  having 
made  inquiry,  and  without  communicating  with  the  doctor,  ar- 
rested Danby,  who  had  to  appear  before  the  magistrates  and  was 
committed  for  trial,  it  was  held  that  there  was  no  evidence  that 
the  doctor  was  the  prosecutor,  and  therefore  he  was  not  liable  in 
an  action  for  malicious  prosecution  {d). 

(2.)   That  the  defendant  acted,  maliciously. 

"  In  an  action  of  this  description  the  question  of  malice  is  an 
independent  one — of  fact  purely — and  altogether  for  the  consid- 
eration of  the  jury"  (e).  But  if  the  defendant  acted  without 
reasonable  and  probable  cause,  the  jury  will  not  generally  have 
much  difficulty  in  arriving  at  the  conclusion  of  malice.  But,  on 
the  other  hand,  it  would  not  do  the  plaintiff  any  good  to  prove 
malice  alone,  for  a  person  may  be  actuated  by  the  bitterest  malice 
and  yet  have  plenty  of  ground  for  prosecuting.  Malice  is  proved, 
for  example,  by  showing  that  the  defendant  did  not  really  himself 
believe  in  the  plaintiff's  guilt,  or  by  it  appearing  that  what  he 
really  wanted  was  not  to  punish  crime  (as  the  beautiful  theory 
of  our  law  is  that  all  prosecutors  wish  primarily  to  do)  (/),  but 
to  enforce  payment  of  a,  debt  (g).  A  prosecution  which  is  not  mali- 
cious to  start  with  may  become  so  by  the  prosecutor  discovering 
that  the.  defendant  is  really  innocent  and  yet  going  on  with  the  crim- 
inal proceedings  (/<). 

An  action  for  malicious  prosecution  will  lie  against  a  com- 
pany (i). 

(3.)  That  the  defendant  acted  without  reasonable  and  probable 
cause. 

Whether  there  was  reasonable  and  probable  cause  is,  when  the 
facts  are  found,  a  question  of  law  for  the  judge.  Sir  Henry 
Hawkins,  J.,  has  very  lucidly  summarised  the  principles  on 
which  a  judge  ought  to  act  in  deciding  this  question  in  the  re- 
cent case  of  Hicks  v.  Faulkner  (k),  where  it  was  held  that,  even 


(d)  Danby  v.  Beardsley,  43 
L.  T.  603. 

(e)  Per  Sir  Henry  Hawkins 
in  Hicks  v.  Faulkner,  8  Q.  B. 
D.  167;  and  see  also  Harrison 
v.  National  Provincial  Bank, 
49  J.  P.  390,  D. 

(/)  For  forensic  purposes,  a 
great  hole  is  made  in  a  prose- 
cutor's character  by  his  admis- 
sion in  cross-examination  that 
he  was  willing  to  abandon  the 
prosecution  on  having  the  value 
of  his  stolen  goods  restored  to 
him.  This  lofty  zeal  for  the 
public    good,    however,    which 


judges  are  pleased  to  expect,  is 
scarcely  understood  or  appre- 
ciated by  ordinary  business 
men. 

{q)  See  Hinton  v.  Heather, 
14  M.  &  W.  131;  Broad  v.  Ham, 
5  Bing.  N.  C.  722;  Heslop  v. 
Chapman,  12  Q.  B.  267,  and 
Brooks  v.  AVarwick,  2  Stark. 
393. 

(h)  FitzJohn  v.  Mackinder,  9 
C.  B.,  N.  S.,  505. 

(i)  Edwards  v.  Midland  Ry. 
Co.,  6  Q.  B.  D.  287. 

(A)  8  Q.  B.  D.  167. 


MALICIOUS    PROSECUTION.  355 

though  a  man  might  through  a  defective  memory  have  forgotten 
a  particular  occurrence,  the  recollection  of  which  would  have  re- 
strained him  from  instituting  criminal  proceedings,  still,  if  it 
was  reasonable  under  the  circumstances  that  he  should  trust  to 
his  memory,  he  ought  to  be  excused.  Cut  the  learned  knight 
expressly  points  out  that  ''it  would  be  unreasonable  to  rely  either 
on  an  informant  known  to  be  untrustworthy,  or  a  memory  known 
to  be  unreliable,  icithout  express  confirmation.'" 

Counsel's  opinion  is  no  protection  to  the  defendant  who  has  Counsel's 
instituted  an  unfounded  and  malicious  prosecution  (/).  opinion  no 

(4.)  That  the  proceedings  terminat"d  in  (he  plaintiff's  favour.         |    Ternfina- 

It  may  happen,  however,  that  the  proceedings  were  in  their  tion  in  plain- 
nature  incapable  of  terminating  in  the  plaintiff' s  favour  (e.g.,  in  tifTs  favour, 
the  case  of  a  malicious  exhibition  of  articles  of  the  peace),  and  Articles  of 
in  such  a  case  the  plaintiff  is  excused  from  the  proof  (;«)•     But  peace, 
he  will  not  be  excused  merely  because  there  is  no  appeal  from  a  Xo  appeal, 
particular  summary  conviction  of  justices,  though  arrived  at  Avith 
the  usual  intelligence  of  those  functionaries  (n).     To  hold  other- 
wise would  be,  as  Byles,  J.,  said   in  the  case  referred  to,  ''dis- 
turbing foundations." 

Further,  in  order  to  recover  damages  in  an  action  for  malicious  Damages 
prosecution,  the  plaintiff,  must  show  that  he  has  suffered  either 
in  person,  reputation,  or  pocket  (o).  Every  expense  properly  in- 
curred in  defending  himself  from  the  false  accusation  may  be  re- 
covered for  [p).  General  evidence  of  the  plaintiff's  bad  charac- 
ter in  mitigation  of  damages  can  only  be  given  when  he  is  trying 
to  palm  himself  off  on  the  jury  as  a  highly  respectable  individ-  . 

ual  who  ought  to  have  extra  compensation  in  consequence  of  the 
injury  to  his  formerly  untarnished  reputation  (q). 

An  action  may  be  maintained  for  maliciously  causing  a  man  Maliciously 
to  be  made  bankrupt  (r).  causing 

Also  akin  to  the  action  for  malicious  prosecution  is  the  action  bankruptcy, 
for  false  imprisonment.     False  imprisonment  is  a  trespass  com-  pa]se  jm. 
mitted  by  one  man  against  the  person  of  another  by  unlawfully  prisonment. 
arresting  him,  and  detaining  him  without  any  legal  authority. 
The  imprisonment  need  not  be  by  actual  touch  ;  any  show  of 
authority  or  force  submitted  to  is  sufficient  (s).    But  the  restraint 

(I)    Hewlett  v.    Cruchley,   5  uel,  11  Q.  B.  41. 
Taunt.  277.  (q)  Rodriquez  v.  Tadmire,  2 

(m)  Steward  v.  Gromett,  7  C.  Esp.  721;  Downing  r.  Butcher, 

B.,  N.  S.,  191.  2  M.  &  Rob.  374;  and  Cornwall 

(ji)   Basebe  v.   Matthews,   L.  v.  Richardson.  Ry.  &  M.  305. 
R.  2  C.  P.  684.  (>•)  See  Johnson  ».  Emerson, 

(o)  Freeman  v.  Arkell,  2B.  C.  L.  R.  6  Ex.  329.  and  Farley  v. 

494,  and   Leith  v.  Pope,  2   W.  Danks,  4  E.  &  B.  499. 
Bl.   1326.  (s)  Grainger  v.  Hill,  4  Bing. 

(p)  Foxall  v.  Barnett,  2  E.  &  N.  C.  212,  and  Warner  v.  Riddi- 

B.  298,  and  Rowlands  r.   Sam-  ford,  4  C.  B.,  N.  S.,  206. 


:::><; 


MALICIOUS    PROSECUTION. 


Maliciously 
presenting  a 

petition. 


Malicious 

prosecution 
reasonable 
and  probable 
cause. 


Bankruptcy. 


nrasl  be  total;  it  is  not  falsely  imprisoning  a  man  to  prevent  his 
going  in  a  particular  direction  (f).  "  Tbe  distinction  between 
false  imprisonment  and  malicious  prosecution,"  said  Willes,  J., 
in  Austin  v.  Dowling  (w),  "  is  well  illustrated  by  the  case  where, 
parties  being  before  a  magistrate,  one  makes  acharge  against  an- 
other, whereupon  the  magistrate  orders  the  person  charged  to  be, 
taken  into  custody  and  detained  until  tbe  matter  can  be  investi- 
gated. The  party  making  the  charge  is  not  liable  to  an  action 
for  false  imprisonment,  because  he  does  not  seta  ministerial 
officer  in  motion,  but  a  judicial  officer.  The  opinion  and  judg- 
ment of  a  judicial  officer  are  interposed  between  the  charge  and 
the  imprisonment." 

An  action  will  lie  for  falsely  and  maliciously'and  without  reason- 
able and  probable  cause  presenting  a  petition  under  the  Com- 
panies Acts,  18G2-1867,  to  wind  up  a  trading  company,  even  al- 
though no  pecuniary  loss  or  special  damage  to  the  company  can 
be  proved,  for  the  presentation  of  the  petition  is  from  its  very  na- 
ture calculated  to  injure  the  credit  of  the  company.  At  the  hear- 
ing of  a  plaint  in  a  county  court  to  recover  rent  (x),  the  tenant's 
son  was  called  as  a  witness  and  swore  that  he  had  given  up  the 
key  of  the  premises  to  the  landlord  before  the  rent  accrued  due. 
The  landlord  denied  this  and  subsequently  prosecuted  the  wit- 
ness for  perjury.  He  was  acquitted  and'brought  an  action  against 
the  landlord  for  malicious  prosecution.  At  the  trial  the  plaintiff 
and  defendant  repeated  their  evidence  as  to  the  key,  and  the 
judge  directed  the  jury  alternatively  that  if  they  could  not  ar- 
rive at  a  conclusion  as  to  which  of  the  parties  was  speaking  the 
truth,  the  plaintiff  had  not  made  out  his  case,  and  the  defendant 
was  entitled  to  a  verdict;  and  that  if  they  thought  the  plaintiff 
did  give  up  the  key,  but  the  defendant  owing  to  a  defective  mem- 
ory had  forgotten  the  occurrence  and  went  on  with  the  prosecu- 
tion honestly  believing  that  the  plaintiff  had  sworn  falsely  and 
corruptly,  then  the  jury  would  not  be  justified  in  saying  that  the 
defendant  maliciously,  and  without  reasonable  and  probable 
cause,  prosecuted  the  plaintiff,  and  the  defendant  would  be  en- 
titled to  their  verdict: — It  wTas  decided  that  the  direction  of  the 
judge  was  right  (y). 

In  the  Metropolitan  Bank  r.  Pooley  (z),  it  was  held  that  a  bank- 
rupt whose  adjudication  in  bankruptcy  has  not  been  set  aside 
cannot  maintain  an  action  for  maliciously  procuring  the  bank- 
ruptcy, and  such  an  action  may  be  summarily  dismissed  upon 
summons  as  frivolus  and  vexatious. 


(0  Bird  v.  Jones,  7  Q.  B.  71:2. 

(m)  L.  R.  5  C.  P.  534;  and  see 
also  Cahill  v.  Fitzgibbon,  16  L. 
E.  Ir.  871— Q.  B.  D. 

(x)  Quartz  Hill  Qold  Mining 
Co.  v.  Eyre,  11  Q.  li.  D.  674,  52 


•M  W.  R.  663.  And  see  50  L. 
T.  274  D. 

{>/)  Hicks  v.  Faulkner,  8  Q. 
B.  D.  167. 

{z\  10  App.  Cases  210;  54  L. 
J.  Q.  B.  419:  53  L.  T.  163;  :::; 


L.  J.,  q.   li.,  488;  40  L.  T.  240;     W.  R.  700,40  J.  P.  756  H.  L.  (E). 


MALICIOUS   PROSECUTION.  357 

The  law  with  reference  to  cases  of  malicious  prosecution  has  Onus  of 
been  recently  illustrated  by  Alrath  v.  North  Eastern  Railway  proof. 
Company.  In  this  case  the  following  principle  was  laid  down  as 
governing  actions  for  malicious  prosecution.  The  burden  of  proof 
as  to  all  the  issues  arising  therein  lies  upon  the  plaintiff;  and, 
although  the  plaintiff  proves  that  he  was  innocent  of  the  charge 
laid  against  him,  and  although  the  judge,  in  order  to  enable  him- 
self to  determine  the  issue  of  reasonable  and  probable  cause,  leaves 
subsidiary  questions  of  fact  to  the  jury,  nevertheless  the  onus  of 
proving  the  existence  of  such  facts  as  tend  to  establish  the  want 
of  reasonable  and  probable  cause  on  the  part  of  the  defendant, 
rests  upon  the  plaintiff.  The  plaintiff,  a  surgeon,  had  attended 
one  M.,  for  bodily  injuries  alleged  to  have  been  sustained  in  a 
collision  upon  the  defendants'  railway.  II.  brought  an  action 
against  the  defendants,  which  was  compromised  by  the  defend- 
ants paying  a  large  sum  for  damages  and  costs.  Subsequently, 
the  directors  of  the  defendants'  company,  having  received  cer- 
tain information,  caused  the  statements  of  certain  persons  to  be 
taken  by  a  solicitor  ;  these  statements  tended  to  show  that  the 
injuries  of  which  M.  complained  were  not  caused  at  the  collision, 
but  were  produced  wilfully  by  the  plaintiff,  with  the  consent  of  M., 
for  the  purpose  of  defrauding  the  defendants.  These  statements 
were  laid  before  counsel,  who  advised  that  there  was  good  ground 
for  prosecuting  the  plaintiff  and  M.  for  conspiracy.  The  defend- 
ants accordingly  prosecuted  the  plaintiff,  but  he  was  acquitted. 
In  an  action  for  malicious  prosecution,  the  judge  directed  the  jury 
to  find  whether  the  defendants  had  taken  reasonable  care  to  in- 
form themselves  of  the  true  state  of  the  case,  and  whether  they 
honestly  believed  the  case  which  they  laid  before  the  magistrates  ; 
the  jury  having  answered  these  questions  in  the  affirmative,  the 
judge  entered  the  judgement  for  the  defendants,  and  it  was  held 
by  the  Court  of  Appeal,  reversing  the  decision  of  the  Divisional 
Court,  that  the  judge  had  rightly  entered  the  judgement  for  the 
defendants  (a). 

The  judgment  of  the  Court  of  Appeal  has  been  since  upheld  by 
the  House  of  Lords. 

(a)  11  Q.  B.  D.  440  ;  52  L.  J.,  Q.  B.,  620  :  49  L.  T.  618  ;  32 
W.  R.  !58  ;  47  J.  P.  692  C.  A.  Ke versing  11  Q.  B.  D.  79  ;  52  L. 
J.,  Q.  B.    352  D. 


358  NO    CONTRIBUTION    BETWEEN   DEFTS.    IN    TORT. 


No  Contribution  Between  Defendants  in  Tort. 

[139.]  MEKRYWEATHBR  v.  NIXAN. 

[8  T.  E.  186  (1799).] 

Merryweather  and  Nixan  destroyed  the  machinery 
and  injured  the  mill  of  a  Yorkshireman  named  Starkey. 
The  mill-owner  was  not  prepared  to  submit  tamely,  and 
brought  an  action  against  the  pair  of  them.  The  jury 
gave  him  £840  as  damages,  and,  instead  of  getting  £420 
from  each,  he  made  Merryweather  pay  the  whole  £840. 
Merryweather  did  not  see  why  he  should  pay  for  Nixan's 
whistle  as  well  as  his  own,  and  sued  his  "pal"  for  con- 
tribution, that  is  to  say,  for  £420.  la  fairness,  of  course, 
Nixan  ought  to  have  made  no  difficulty  about  paying  it; 
but  he  steadfastly  declined  to  do  anything  of  the  sort. 
The  law  backed  him  up  in  this  refusal,  for  ex  turpi 
causa  non  oritur  actio. 


No  contribu-      There  is  np  contribution  between  defendants  in  iort.  In  contract 

tion.  there  is.     If  there  are  two  sureties,  and  one  of  them  is  made  to 

pay  the  whole  debt,  he  can  sue  his  brother  surety  for  half  of  what 

he  has  paid  (b).     In  such  a  case  there  is  no  lurpis  causa. 

ttw.«™+;™  But  the  rule  that  one  tortfeasor  cannot  sue  another  for  contri- 

-bxception 

where  plain-  bution  does  not  extend  to  the  case  where  the  former  has  acted 
tiff  quite  in-  quite  innocently,  and  was  simply  obeying  what  he  believed  to  be 
the  lawful  instructions  of  his  employer.  Such  a  person  may  claim 
not  merely  contribution,  but  an  absolute  indemnification.  If  A. 
orders  B.  to  drive  cattle  out  of  a  field,  and  in  obeying  the  order 
B.  unwittingly  commits  a  trespass,  A,  must  indemnify  him  ;  but 
it  would  be  different  if  the  order  given  and  obeyed  were  to  punch 
C.'s  head,  without  rhyme  or  reason,  because  B.  must  have  known 
that  A.  had  no  business  to  tell  him  to  do  that  (c). 


nocent. 


(6)  See  Whiteher  v.  Hall,  p.  18.     Ad.    &    E.    57  f  and    Dixon 
(c)  Pearson  v.  Skelton,  1    M.     Fawcuss,  30  L.  J.,  Q  B.,  137. 
&  W.  504  ;    Betts  v.  Gibbins,  2 


MEASURE    OF   DAMAGES    IN   TORT.  359 

When  several  persons  join   in  committing  a  tort,  the  person  Each  joint 
injured  may  select  one  particular  tortfeasor  as  his  victim,   and  tortfeasor 
make  him  pay  all  the  damages.     Thus,  in  an  action  against  the  lla,)le  'or 
huntsman  of  the  Berkeley  hounds  for  destroying  fences  and  in- 
juring crops,  it  was  held  that  the  defendant,  being  a  co-trespasser 
was  liable  for  ihc  whole  of  the.  damage  done,  not  merely  for  -what  he 
had  individually  occasioned  (d). 

Judgment  recovered  against  one  joint  tortfeasor  is  a  bar  to  an  Effect  of 
action  against  the  others  for  the  same  cause,  although  the  judg-  judgment 
ment  remains  unsatisfied  (e).  against  one 

A  man  for  whose  benefit  a  tort  is  committed  may  afterwards  je.lS01. 
ratify  and  adopt  it  (/').      "  But  to  make  a  man  a  trespasser  by  re-  Ro+ififtation 
lation  from  having  ratified  and  adopted  an  act  to  trespass  done  in  0f  tort. 
his  name  and  for  his  benefit,  it  must  be  shown  that  the  act  was 
ratified  and  adopted  by  him  with  full  knowledge  of  its  being  a 
trespass,  or  of  its  being  tortious,   or  it  must  be  shown  that  in 
ratifying  and  taking  the  benefit  of  the  act  he  meant  to  take  upon 
himself,  without  iuqiury,  the  risk  of  any  irregularity  which  might 
have  been  committed,   and  to  adopt  the  transaction,  right  or 
wrong"  (</). 


Measure  of  Damages  in  Tort. 

LUMLEY  r.  GYE.  [140.] 

[2  E.  &  B.  21G  (1853).] 

Mr.  Lumley,  the  lessee  and  manager  of  the  Queen's 
Theatre,  engaged  a  fascinating  young  lady  to  sing  and 
perform  on  his  boards  for  a  period  of  three  months. 
During  tho  three  months  Mr.  Gye,  a  rival  manager, 
persuaded  her  to  break  her  engagement,  and  leave  Mr. 
Lumley  ;  and  it  was  for  this  interference  that  the 
present  action  was  brought.     It  was  held   (in  spite  of 

(d)  Hume  r.  Oldacre,  1  Stark.  &   G.    23fi  ;    and    see    Hull    v. 

352.  Piekersgill,     1    B.    &    B.    282, 

(c)  King  v.  Hoare,   13  M  &  and  Buron  v.  Denman,  2   Ex. 

W.  504,  and  Brinsmead  v.  Har-  167. 
rison.  L.  R.  7  C.  P.  547.  (g)  Add  Torts,  5th  ed.,  p.  87. 

(/)  Wilson  v.  Tumman,  6  M. 


360 


MEASURE    OF    DAMAGES    IX   TORT. 


Bowen  w. 
Hall. 


Vicars  r. 
Wilcocks. 


Not  too  re- 
mote. 


Looser 
measure  of 
damages  in 

tort  than  in 
'■on  tract. 
►Seduction. 


Assault. 


the  dissent  of  Coleridge,  J.,  who  thought  thafc  such  an 
action  could  only  be  brought  when  the  strict  relation- 
ship of  master  and  servant  existed)  that  the  action 
could  bo  maintained,  and  damages  recovered. 

Lumley  v.  Gye  was  followed  in  the  recent  case  of  Bowen  v.  Hall 
(/*),  Lord  Coleridge,  C.  J.,  however,  with  filial  reverence,  being 
dissentient. 

Before  the  leading  case  was  decided,  it  used  to  he  thought  that 
the  damage  in  respect  of  which  an  action  was  brought  must  have 
been  the  legal  consequence  of  the  defendant's  act  (/).  If,  for  in- 
stance as  the  consequence  of  the  defendant's  slander,  a  mob  had 
ducked  the  plaintiff  in  a  horse-pond,  such  a  consequence  would 
have  been  an  illegal  and  unnatural  consequence  of  the  slander, 
and  could  not  be  taken  into  account  in  estimating  the  compen- 
sation to  be  paid  by  the  defendant  to  the  plaintiff.  Lumley  v.  Gye, 
however,  alters  this  rule  by  allowing  the  wrongful  act  of  the 
third  party  to  form  part  of  the  damage  where  such  wrongful  act 
might  be  naturally  contemplated  as  likely  to  arise  from  the 
defendant's  conduct. 

The*  damage,  however,  must  not  be  too  remote.  Where,  for 
instance,  the  defendant  libelled  a  public  singer,  in  consequence 
of  which  she  broke  her  engagement  with  the  plaintiff,  and  would 
not  sing,  the  plaintiff's  injury  was  considered  too  remote.  So  it 
was  too,  in  another  case,  where  the  manager  of  a  theatre  brought 
an  action  against  a  person  who  horsewhipped  one  of  his  actors 
so  soundly  as  to  prevent  him  from  performing.  The  cases  of 
Allsop  v.  Allsop  (where  a  married  lady  was  made  ill  by  the  de- 
fendant's imputing  incontinency  to  her),  Ward  v.  Weeks  (where 
somebody  repeated  the  defendant's  slanderous  words),  and  Hoey 
v.  Felton  (j)  (where  a  young  man  missed  an  engagement  through 
the  defendant's  falsely  imprisoning  him),  may  also  be  referred 
to.  all  being  cases  in  which  the  damage  was  held  to  be  too  re- 
mote, and  not  the  direct  and  immediate  result  of  the  defendant's 
wrongful  act. 

The  rules  by  which  damages  are  assessed  are  much  looser  in 
tort  than  in  contract.  Juries  may  generally  take  into  account 
all  the  surrounding  circumstances,  and  give  damages  not  so  much 
to  compensate  the  plaintiff  as  to  punish  the  defendant.  Thus, 
in  the  action  of  seduction,  which  in  point  of  form  purports  to 
give  a  recompense  for  loss  of  services,  the  plaintiff  would  recover 
very  different  damages  according  to  the  seducer's  social  position 
and  the  manner  in  which  he  had  accomplished  his  purpose.     So, 


(/<)  6  Q.  B.  D.  333. 

(/)  See  Vicars  v.  Wilcocks,  8 
Last.  1. 

( /)  Alsopp  v.  Alsopp.  5  H. 
&  X.  534  ;  29  L.  J.  Ex.  315;  G 
Jurist,    N.    S.   435.    Ward    v. 


Weeks,  7  Bing.  211  ;  4  M.  &  P. 
796.  Hoey  v.  Felton.  11  C.  B., 
N.  S.  14-2  ;  8  Jur.,  N.  S.  764; 
31  L.  J..  C.  P.  105  ;  5  L.  T. 
354  ;  10  W.  R.  78. 


MEASURE    OF    DAMAGES    IN    TORT.  361 

in  .action  for  assault,  the  circumstances  of  time,  place,  and  man- 
ner should  he  taken  into  account ;  it  is  a  greater  insult  to  be 
beaten  upon  the  Royal  Exchange  than  in  a  private  room  (7.-). 
Juries,  in  fact,  have  a  very  wide  discretion,  and  there  seems  an 
increasing  unwillingness  of  the  courts  to  interfere  with  their  ver- 
dicts on  the  ground  of  excesshe  damages  (/).  In  one  case  (in),  Trespass, 
where  the  action  waslortrespassingon  the  plaintiff's  land,  and  the 
evidence  showed  that  the  defendant  had  made  use  of  very  offensive 
language,  the  jury  returned  a  verdict  for  £500  damages  and  the 
court  refused  tj  grant  a  new  trial,  saying,  "Suppose  a  gentle- 
man has  a  paved  walk  before  his  window,  and  a  man  intrudes, 
and  walks  up  and  down  before  the  window,  and  remains  there 
after  he  has  been  told  to  go  away,  and  looks  in  while  the  owner 
is  at  dinner,  is  the  trespasser  to  be  permitted  to  say,  '  Here  is  a 
halfpenny  ior  you,  which  is  the  full  extent  of  all  the  mischief  I 
have  done  !'     Would  that  be  a  compensation?" 

In  Phillips  v.  The  London  and  South  Western  Railway  Com-  p)r  Phillips's 
pany  (n)  it  was  held  that,  in  an  action  against  a  railway  com-  case, 
pany  for  personal  injuries  to  a  passenger, — in  this  case  a  doctor 
of  some  eminence, — the  jury  might  take  into  their  consideration, 
besides  the  pain  and  suffering  of  the  plaintiff,  and  the  expense 
incurred  by  him  for  medical  and  other  necessary  attendance,  the 
loss  he  had  sustained  through  his  inability  to  continue  a  lucra- 
tive professional  practice. 

Where  it  is  evident  that  the  jury  have  not  give  proper  atten-  inadequate 
tion  to  all  the  elements  of  the  plaintiffs  claim,  a  new  trial  will  damages. 
be  granted  on  the  ground  that  the  damages  are  insufficient  (o). 

Before  184G,  the  surviving  relatives  of  a  person  whose  death 
had  been  caused  by  the  negligent  or  wrongful  act  of  another  had 
no  remedy  against  the  wrong-doer,  because  actio  personalis  mor- 
itur  cum  persona.     This  hardship  was  removed  by  Lord  Campbell's  Lord  Camp- 
Act  (9  &  10  Vict,  c.  93)  ;  and  now,  when  the  breadwinner  of  a  bell's  Act. 
family    is   taken   away  under   such   circumstances,    those   who 
are  likely  to  be  the  greatest  sufferers  may  claim  compensation 
(if  the  deceased  himself  might  have  brought  an  action  for  per- 
sonal injuries)  from  the  person   wdiose   "wrongful  act,  neglect, 
or  default"   has  caused  the  death.      "Every  such  action,"  the  Wives,  hus- 
Act   provides,  "shall   be   for  the   benefit  of  the  wife,  husband,  hands, 
parents,  and 

(k)  "  ^4/ra.rinjuiriarestimatur  iam  facit,  velutisi  in  oculo  [vel 

vel  ex  facto,    veluti  si  quis  ab  fundamento ?]      quis     percus- 

alicpio  vulneratus  fuerit  vel  fus-  serit."  Jnst.  Inst.  Lib.  4, Tit.  4. 

tibus  csesus  :  vel  c.r  loco,  veluti  (I)  See  Lambkin  v.  S.  E.  Ry. 

si  cui  in  theatro  vel  in  foro  vel  Co.,  5  App.  Ca.  352. 

in   conspectu   Pra-toris    injuria  (m)  Merest  v.  Harvey, 5 Taunt, 

facta  sit  ;  vel  ex  persona,  veluti  442. 

si  magistratus  injuriam  passus  (n)  5  C.  P.  D.  280. 

fuerit,     .     .     .      Xonnunquam  (o)  Phillips  v.  L.   and  S.    W. 

et  locus  vulniris  atrocem  injur-  Ry.  Co.,  5  Q.  B.  D.  78. 


302 


MEASURE  OF  DAMAGES  IN  TORT. 


Within  12 

months. 

Pecuniary 
loss  only  to  be 

compensated 
for. 


Superior 
education. 

Funeral  ex- 
penses. 


Only  one 
action. 


Policy  of  in- 
surance not 
to  be  count- 
ed. 


Damage  to 

personal 

estate. 


parent  (p),  and  child  (q)  of  the  person  whose  death  shall  have 
been  so  caused,  and  shall  be  brought  by  and  in  the  name  of  the 
executor  or  administrator."  If,  however,  there  is  no  executor  or 
administrator,  or  if  he  does  not  start  the  action  within  six  months 
of  the  death,  it  may  be  brought  by  those  really  interested  (r). 
But,  in  either  case,  it  must  be  commenced  within  twelvemonths 
of  the  death.  In  estimating  the  damages  under  this  Act,  the 
jury  must  compensate  for  pecuniary  loss  alone  ;  they  cannot  con- 
sider the  gri(f  of  those  who  have  lost  a  dear  relative  (*).  But 
a  reasonable  expectation  of  pecuniary  benefit  from  the  continuance 
of  the  life  may  be  taken  into  account.  The  jury,  for  instance, 
may  give  compensation  for  the  loss  of  the  benefit  of  a  superior 
education  which  the  children  would  have  received  if  their  father 
had  lived  (/).  Funeral  expenses  are  not  recoverable  (u).  The 
amount  given  is  to  be  divided  among  the  beneficiaries  in  such 
shares  as  the  jury  shall  direct  (a-).  If  the  deceased  in  his  life- 
time recovered  damages  for  the  injury  done  him,  his  relatives 
cannot  bring  another  action  after  he  is  dead  (?/).  But  if  a  man 
has  been  fraudulently  induced  to  accept  a  sum  of  money  and 
sign  a  release  by  deed — by  being  told,  for  instance,  that  his  in- 
juries are  of  a  very  trifling  nature,  and  that  if  he  got  worse,  he 
could  claim  fresh  damages — in  that  case  he  (or  if  he  died,  his 
representatives)  could  maintain  a  subsequent  action  (z). 

A  policy  of  insurance  which  a  person  injured  may  have  effected 
is  not  to  be  taken  into  account  against  him  in  settling  the  dam- 
ages (a)  ;  but  if  the  insurance  money  covers  the  whole  conse- 
quences of  the  injury,  he  is  a  trustee  for  the  insurers  of  the  money 
he  receives  from  the  defendants  (b). 

In  Bradshaw  v.  The  Lancashire  and  Yorkshire  Railway  Com- 
pany (c)  it  was  held  that  where  a  passenger  on  a  railway  was  in- 
jured, and  after  an  interval  died  in  consequence,  his  executrix 
might  recover  in  an  action  for  breach  of  contract  against  the  defen- 
dants the  damage  to  his  personal   estate  arising  in  his  lifetime 


(p)  See  Hetherington  v.  N. 
Ry.  Co..  9  Q.  B.  D.  160. 

(q)  "'Child"  includes  a  achild 
en  venire  sa  mere,  but  not  a  ille- 
gitimate child. 

(r)  27&28  Vict.  c.  9.",  s.  1. 

(s)  Blake  v.  Midland  Rv.  Co., 
18  Q.  B.  93. 

(I)  Pym  v.  G.  N.  Ry.  Co.  4B. 
&  S.  396. 

(m)  Dalton  v.  S.  E.  Ry.  Co., 
27  L.J.,  C.  P.  227. 

(.')  Sec.  2  ;  and  see  Springett 
v.  Balls.  7  B.  &  C.  477. 

(y  Read  v.  G.  E.  Rv.  Co.,  L. 
R.  3  Q.  B.  555. 


(z)  Hirschfield  v.  London, 
Brighton  and  S.  Coast  Ry.  Co., 
2Q.  B.  D.  1. 

(a)  Bradburn  v.  G.  W.  Ry. 
Co.,  L.  R.  10  Ex.  1. 

(b)  See  Randall  v.  Cockman, 
1  Ves.  Sen.  97 ;  Simpson  r. 
Thompson,  3  App.  Ca.  279;  and 
Clark  v.  Blything,  2  B.  &C.254  ; 
and  see  Bulmer  v.  Buhner.  25 
Ch.  D.  409  ;  53  L.  J.  Chan.  402, 
32  W.  R.  380  Chitty,  J. 

(c)  L.  R.  IOC.  P.  180;  and 
see  Leggott  v.  G.  N.  Ry.  Co.,  1 
Q.  B.  D.  599,  and  Potter  v.  Met. 
Dist.  Ry.  Co.,  30  L.  T.  765. 


HEARSAY    EVIDENCE.  363 

from  medical  expenses  and  loss  occasioned  by  his  inability  to  at- 
tend to  business.  But  if  the  action  were  in  tori  (as  where  the  de- 
ceased was  run  over  at  a  level  crossing)  such  a  claim  could  not  be 
supported  (d). 

The  25th  section  of  the  Regulation  of  Railways  Act,  1868  (c),  Arbitration, 
provides  for  the  reference  to  arbitration  of  any  claim  for  dam- 
ages in  respect  of  injuries  or  death,  if  the  parties  are  agreed.  On 
joint  application  in  writing  to  the  Board  of  Trade,  an  arbitrator 
will  be  appointed,  with  power  to  determine  the  compensation,  if 
any,  to  be  paid. 


Hearsay. 


DOE  (1.  DIDSBTJRY  v.  THOMAS.  [141.] 

[14  East,  323  (1811).] 

In  this  case  a  lady  named  Ann  Didsbury  brought  an 
action  of  ejectment  for  a  farm  of  thirty- five  acres,  called 
the  Meadow  Farm  at  Tideswell  in  Derbyshire.  She 
claimed  it  under  the  will  of  a  Mr.  Samuel  White,  who 
had  died  some  time  before.  The  will  was  dated  November 
26th,  1754,  and  the  chief  obstacle  to  Ann's  success  was  to 
prove  that  the  lands  were  the  testator's  at  that  time.  In 
support  of  her  case  she  called  a  witness  who  swore  that 
the  farm  in  question,  together  with  another  farm  called 
Foxlow's  Croft,  was  reputed  to  have  been  Sir  John  Stat- 
ham's,  and  to  have  been  purchased  at  the  same  time  with 
it  by  Samuel  White  of  Sir  John.  That  of  course  alone 
did  not  fix  any  particular  date.  But  to  supplement  this 
evidence,  and  make  it  Berve  the  good  woman's  cause,  a 
deed  was  produced  dated  March  25th,  1752,  whereby  in 
consideration  of  natural  love  and  affection  old  Samuel 
White  bargained  and  enfeoffed  his  son  Edward  of  Fox- 
low's  Croft,  "  all  which  said  farm,  &c,  have  been  lately 

[d)  Pulling  v.  G.  E.  Ky.  Co.,  (e)  31  &  32  Vict.  c.  119. 

9  Q.  B.  D.  110. 


364  HEARSAY    EVIDENCE. 

purchased  amongst  other  lands  and  hereditaments  by  the 
said  Samuel  White  of  and  from  Sir  John  Statham." 

It  was  clearly  proved  that  Richard,  the  testator's  eldest 
son,  had  taken  possession  of  and  occupied  the  Meadow 
Farm  at  the  same  time  that  his  younger  brother  Ned  had 
begun  to  occupy  Foxlow's  Croft  ;  and  also  that  the  per- 
son immediately  preceding  Richard  in  the  occupation 
of  the  Meadow  Farm  was  tenant  to  Sir  John:  and  the 
plaintiff's  counsel  argued  that  under  the  circumstances 
the  evidence  of  reputation  could  be  received.  It  was 
held,  however  that  the  evidence  could  not  be  received, 
as  reputation  is  not  admissible  in  questions  of  private 
right. 

The  reasons  generally  given  why  what  another  man  said  is  not 
evidence  are  that  he  was  not  on  his  oath  when  he  said  it,  and  that 
he  cannot  be  cross-examined.  But  the  real  principle  of  the  exclu- 
sion would  seem  to  be,  that  "  all  second-handed  evidence,  whether 
of  the  contents  of  a  document  or  of  the  language  of  a  third  person, 
which  is  not  connected  by  responsible  testimony  with  the  party 
against  whom  it  is  offered,  is  to  be  rejected"  (/). 

The  chief  exceptions  to  the  rule  that  "hearsay  is  not  evidence" 
are  the  following  : — 

1.  Hearsay  is  admissible  respecting  matters  of  public  and  general 
interest,  such  as  the  boundaries  of  counties  or  parishes,  claims  of 
highway.  &c.  The  reason  for  the  exception  in  this  case  is  that  the 
origin  of  such  rights  is  generally  obscure  and  incapable  of  better 
proof,  that  people  living  in  the  district  are  naturally  interested 
in  local  matters  and  likely  to  know  about  them,  and  that  reputa- 
tion cannot  well  exist  without  the  concurrence  of  many  persons 
who  are  strangers  to  one  another  and  yet  equally  interested.  Such 
Ante  litem  declarations,  however,  to  be  evidence  must  have  been  made  ante 
motam.  litem  motam,  that  is,  before  any  dispute  on  the  subject  has  arisen; 

although  they  do  not  become  inadmissible  because  they  were  made 
Particular       with  a  view  of  preventing  the  dispute  from  arising  (g).     They 
facts  not  ad-   must  also  be  confined  to  general  matters,  and  not  touch  the  particular 
missible.         facts  from  which  the  general  right  or  interest  is  to  be  inferred. 
"Thus,  if  the  question  be  whether  a  road  be  public  or  private, 
declarations  by  old  persons,  since  dead,  that  they  have  seen  repairs 
done  upon  it  will  not  be  admissible  ;  neither  can  evidence  be  re- 
ceived that  a  deceased   person  planted  a  tree  near  the  road,  and 

(/)  Best  on  Evidence,  p.  C29.         (g)  Berkeley  Peerage  case,  4 

Cam.  401. 


HEARSAY    RVIDENCE.  365 

stated  at  the  time  of  planting  it  that  his  object  was  to  show- 
where  the  boundary  of  the  road  was  when  he  was  a  boy  (A).  So, 
proof  of  old  persons  having  been  heard  to  say  that  a  stone  was 
erected,  or  hoys  whipped,  or  cakes  distributed,  at  a  particular  place, 
will  not  be  admissible  evidence  of  boundary  ;  and  where  the 
question  was  whether  a  turnpike  stood  within  the  limits  of  a 
town,  though  evidence  of  reputation  was  received  to  show  that 
the  town  extended  to  a  certain  point,  yet  declarations  by  old 
people,  since  dead,  that  formerly  Ik>hs<x  stood  where  none  any 
longer  remained  were  rejected,  on  the  ground  that  these  state- 
ments were  evidence  of  a  particular  fact  "  (i). 

As  the  leading  case  shows,  evidence  of  this  kind  is  not  admis-  Questions  of 
sible  on  questions  of  private  right.  In  a  case  in  which  the  ques-  private  right. 
tion  was  who  had  the  right  to  appoint  to  the  head-mastership  of 
Skipton-in-Craven  grammar-school,  an  old  man  of  eighty  years 
was  produced  to  prove  the  tradition  he  had  received  from  his  an- 
cestors as  to  the  mode  of  election  in  their  time,  but  the  evidence 
was  rejected  on  the  ground  that  the  question  in  dispute  was  one 
of  private  right  (k).  Similar  evidence  was  rejected  in  a  case  (?) 
where  the  question  was  whether  the  sheriff  of  a  county  (Cheshire) 
or  the  corporation  of  the  county  town  were  charged  with  the  duty 
of  executing  criminals.  An  ex  officio  information  was  filed  by 
the  Attorney-General  against  the  High  Sheriff  for  not  having  ex- 
ecuted some  murderers  ;  and  the  chief  witness  for  the  Crown 
was  the  Clerk  of  Assize.  In  cross-examination  he  was  asked 
whether  he  had  not  heard  it  reported  amongst  old  persons  in 
Chester  that  the  corporation  were  bound  to  execute.  But  the 
clerk's  evidence  on  this  point  was  not  allowred  to  be  given. 
"This,"'  said  Littledale,  J.,  "is  a  private  question,  whether  the 
sheriffs  of  the  county  or  the  city  are  to  perform  a  duty.  The  cit- 
izens of  Chester  may,  perhaps,  have  a  particular  interest ;  and 
howr  do  we  know7  that  there  may  not  be  a  grant  of  felons'  goods 
to  them?  However  this  matter  may  be,  the  question  is  imma- 
terial to  the  public." 

It  seems  to  be  a  doubtful  point  whetherevidenceof  reputation 
can  be  given  to  prove  or  disprove  a  private  prescriptive  right  or 
liability  in  which  the  public  is  interested.  Such  evidence,  how- 
ever, was  admitted  in  a  case  in  which  the  inhabitantsof  a  county, 
being  indicted  for  non-repair  of  a  public  bridge,  pleaded  that 
certain  specified  persons  were  bound  ratione  tenurse  to  repair 
it  (m). 

It  is,  too,  a  well  established  rule  of  law  that  public  documents  puhiic 
are  admissible  for  certain  purposes,  where  they  have  been  made  documents. 

(h)  R.   v.   Bliss,  7   A.    &   E.  Esp.  3-23. 

550.  (/)  R.   v.  Antrobus,  2  A.  &  E. 

(?')  Tavlor  on  Evidence,  vol.  788. 

i.,  p.  526.  (m)  E.  v.  Bedfordshire,  4  E.  & 

(k)  Withnell  v.   Gartham,    1  B.  541. 

25  COMMON   LAW. 


366 


HEARSAY    EVIDENCE. 


after  public  enquiry  by  a  public  officer.  The  word  "  public  "  is 
utit  to  be  taken  in  the  sense  of  meaning  the  whole  world.  "I 
think,"  says  Lord  Blackburn  (n),  "an  entry  in  the  books  of  a 
manor  is  public  in  the  sense  that  it  concerns  all  the  people  inter- 
ested in  the  manor.  And  an  entry  probably  in  a  corporation 
book  concerning  a  corporate  matter,  or  something  in  which  all 
the  corporation  is  concerned,  would  be  '  public '  within  that 
sense.  But  it  must  be  a  public  document,  and  it  must  be  made 
by  a  public  officer.  I  understand  a  public  document  to  mean  a 
•  document  that  is  made  for  the  purpose  of  the  public  making  use 

of  it,  and  being  able  to  refer  to  it.     It  is  meant  to  be  where  there 
is  a  judicial,  or  quasi-judicial,  duty  to  inquire." 

Pedigree.  ~-  Hearsay  is  admissible  in  matters  of  pedigree,  where  the  ped- 

igree to  which  the  declarations  relate  is  directly  in  issue. 

"The  question  is,  which  of  three  sons  (Fortunatus,  Stephanus, 
and  Achaicus)  born  at  a  birth  is  the  eldest. 

"The  fact  that  the  father  said  that  Achaicus  was  the  young- 
est, and  he  took  their  names  from  St.  Paul's  Epistles  (see  1  Cor. 
xvi.  17),  and  the  fact  that  a  relation  present  at  the  birth  said 
that  she  tied  a  string  round  the  second  child's  arm  to  distinguish 
it,  are  relevant"  (o). 

Such  declarations,  together  with  inscriptions  on  tombstones, 
entries  in  family  bibles,  and  the  like,  are  admissible  on  the  prin-, 
ciple  that  they  are  the  natural  effusions  of  a  person  who  must 
know  the  truth,  and  has  no  motive  for  misrepresenting  it.  As 
in  the  last  case,  the  declarations  must  have  been  made  ante  litem 
motam;  and  it  is  now  settled  that  the  persons  making  them  must 
have  been,  not  merely  servants,  friends,  or  neighbors,  but  mem- 
bers of  the  family  (p). 

And  such  statements  by  deceased  members  of  the  family  may 
be  proved,  not  only  by  showing  that  they  actually  made  the 
statements,  but  by  showing  that  they  acted  upon  them,  or  as- 
sented to  them,  or  did  anything  that  amounted  to  showing  that 
they  recognised  them  (q). 

Ancient  "^   Hearsay  is  admissible  in  favour  of  ancient  documents  when 

documents,      tendered  in  support  of  ancient  possession. 

"  The  proof  of  ancient  possession,"  said  Willes,  J.,  in  a  dis- 
puted fishery  case  (r) ,  "is  always  attended  with  difficulty.  Time 
has  removed  the  witnesses  who  could  prove  acts  of  ownership  of 
their  personal  knowledge,  and  resort  must  necessarily  be  had  to 


n    Sturla  v.  Freccia,  L.  R.  5         (p)  Shrewsbury  Peerage  case, 


App.  Ca.  at  p.  643. 

Stephen  on  evidence,  p. 
41;  and  see  Haines  v.  Guthrie, 
13  Q.  B.  D.  818,  53  L.  J.,  Q. 
B.,  521,  51  L.  T.  645,  33  W.  R. 
99,  48  J.  P.  756  C.  A. 


7  H.  L.  Ca.  26. 

(q)  per  Blackburn,  L.  J.,  in 
Sturla  v.  Freccia,  supra,  at  p. 
641. 

(r)  Malcolrnson  v.  O'Dea,  10 
H.  L.  Ca.  593. 


HEARSAY    EVIDENCE.     ,  367 

written  evidence.  In  somo  cases  written  statements  of  title  are 
admitted  even  when  they  amount  to  mere  assertion,  as  in  the 
case  of  a  right  affecting  the  public  generally  ;  but  the  entry  now 
under  consideration  is  admissible  according  to  a  rule  equally  ap- 
plicable to  a  fishery  in  a  private  pond  as  to  one  in  a  public  navi- 
gable river.  That  rule  is,  that  ancient  documents  coming  outof 
proper  custody,  and  purporting  upon  the  face  of  them  to  show 
exercise  of  ownership,  such  as  a  lease  or  a  licence,  may  be  given 
in  evidence  without  proof  of  possession  or  payment  of  rent  under 
them  as  being  in  themselves  acts  of  ownership  and  proof  ol  pos- 
session. This  rule  is  sometimes  stated  with  the  qualification, 
provided  that  possession  is  proved  to  have  followed  similar  docu- 
ments, or  that  there  is  some  proof  of  actual  enjoyment  in  accord- 
ance with  the  title  to  which  the  documents  relate.  And  cer- 
tainly in  the  case  of  property  allowing  of  continuous  enjoyment, 
without  proof  of  actual  exercise  of  the  right,  any  number  of  mere 
pieces  of  paper  or  parchment  purporting  to  be  leases  or  licences 
ought  to  be  of  no  avail.  It  may  be  a  question  whether  the  ab- 
sence of  proof  of  enjoyment  consistent  with  such  documents  goes 
to  the  admissibility  or  only  to  the  weight  of  the  evidence  ;  proba- 
bly the  latter." 

Mr.  Justice  Stephen  in  his  "  Digest"  does  not  place  this  class 
of  evidence  as  an  exception  to  the  rule  excluding  hearsay,  but 
gives  the  effect  of  it  separately,  thus-  "Where  the  existence  of 
any  right  of  property,  or  of  any  right  over  property,  is  in  ques- 
tion, every  fact  which  constitutes  the  title  of  the  person  claiming 
the  right,  or  which  shows  that  he,  or  any  person  through  whom 
he  claims,  was  in  possession  of  the  property,  and  every  fact  which 
constitutes  an  exercise  of  the  right,  or  which  shows  that  its  exer- 
cise was  disputed,  or  which  is  inconsistent  with  its  existence,  or 
renders  its  existence  improbable,  is  relevant. 

"  Illustrations. — (a.)  The  question  is  whether  A.  has  a  right  of 
fishery  in  a  river.  An  ancient  inquisitio  post  mortem,  finding  the 
existence  of  a  right  of  fishery  in  A.'s  ancestors,  licences  to  fish 
granted  by  his  ancestors,  and  the  fact  that  the  licencees  fished 
under  them,  are  deemed  to  be  relevant  (s). 

"  (b.)  The  question  is  whether  A.  owns  land.  The  fact  that 
A.'s  ancestors  granted  leases  of  it  is  deemed  to  be  revelant  "  (/). 

Documents  more  than  thirty  years  old  are  presumed  to  be  in 
the  handwriting  of  the  persons  who  purport  to  have  written 
them,  provided  they  are  produced  from  such  custody  as  the  judge 
considers  proper. 

4.  Hearsay  is  admissible  in  favour  of  declarations  made  by  per-  Entries 
sons  since  deceased  against  their  interest.  against  in- 

. terest. 

(s)  Rogers  t>.  Allen,  1  Camp.  (/)  Doe  v.  Pullman,  3  Q.  B. 
309.  622. 


368 


HEARSAY    EVIDENCE 


Entries  in 
coarse  <>i' 
business 

Dying  decla 
rations. 


Character. 


Sheen  r. 
Bumpstead. 


On  this  subject  see  Higham  v.  Ridgway,  p.  369. 

5.  Also  in  favour  of  declarations  made  by  such  persons  in  the 
ordinary  courst  of  i/k ■•//•  business. 

On  this  subjecl  see  I'riee  v.  Torrington,  p.  369. 

6.  Hearsay  is  admissible  sometimes  in  favour  of  dying  declara- 
tions. 

This,  however,  is  confined  to  criminal  law.  And  even  then  a 
dying  declaration  is  only  admitted  when  the  death  of  the  person 
making  the  declaration  is  the  subject  of  the  charge,  and  the  cir- 
cumstances of  the  death  the  subject  of  the  dying  declaration. 
This  may  sound  a  hibernianism,  but  a  little  thought  will  con- 
vince the  student  that  it  is  not.  The  declaration,  too,  must  be 
made  when  the  declarant  has  no  hope  of  recovery  and  is  in  actual 
danger  of  death. 

7.  In  criminal  cases,  evidence  is  admissible  to  show  that  the 
accused  bears  a  good  character. 

Counsel  defending  prisoners  sometimes  ask  a  witness  to  char- 
acter "  Do  you  believe  the  prisoner  to  be  an  honest  man  ?  "  Such 
a  question  is,  however,  irregular-  it  is  not  the  belief  of  the  wit- 
ness that  is  admissible  in  evidence,  but  the  general  reputation 
borne  by  the  prisoner  amongst  his  neighbors. 

So,  too,  in  a  civil  action  evidence  of  character  may  become 
relevant.  Thus,  in  one  case  (u),  a  Yarmouth  grocer  named  Wat- 
son wanted  some  cheese  ;  so  he  wrote  to  a  cheese-factor  at  Leices- 
ter asking  for  some,  and  said  another  Yarmouth  grocer  named 
Bumpstead  would  answer  for  him.  On  receiving  this  applica- 
tion the  cheese-factor  wrote  to  Bumpstead,  and  asked  him  about 
Watson.  Bumpstead  replied  that  to  the  best  of  his  knowledge 
Watson  was  a  trustworthy  person.  Watson  turned  out  an  un- 
satisfactory customer,  and  the  cheese-factor  went  to  law  with 
Bumpstead  for  a  fraudulent  misrepresentation.  In  defence, 
Bumpstead  called  a  witness  who  was  asked  by  the  defendant's 
counsel,  "  Was  Watson  on  the  24th  of  October.  1860,  trustworthy 
to  your  belief?"  The  question  was  held  admissible,  as  tending 
to  show  that  Bumpstead  made  the  representation  in  good  faith. 
Bramwell,  B.,  however,  dissented  on  the  ground  that  the  ques- 
tion was  one  as  to  the  witness's  belief,  and  not  as  to  Watson's 
reputation  ;  and  see  the  recent  case  of  Scott  v.  Sampson,  ol  L.  J. 
Q.  B.  380. 

8.  Spoken  words  may.  too,  sometimes  become  admissible  as 
forming  part  of  the  transaction,  or,  as  it  is  technically  called,  as 
part  of  the  res  gestae,. 

Exclamations  at  the  time  of  an  assault,  for  instance,  can  be 
given  in  a  subsequent  action  In  a  rape  prosecution,  one  of  the 
most  important  witnesses  is  usually  the  woman  to  whom  the  girl 
complained.     This  woman  can  be  asked,  "  Did  she  make  a  com- 


(m)  Sheen  v.  Bumpstead,  2  H.  &  C.  193. 


DECLARATIONS  OF  DECEASED  PERSONS.  369 

plaint  to  you?"  but  counsel  is  not  generally  allowed  to  go  further 
and  ask,  "What  did  she  complain  of  ?  "  as  what  she  said  then 
was  not  part  of  the  rex  gcstx. 


Declarations  by  Persons  since  Deceased.  ■ 

PRICE  v.  TORRINGTON.  [142.] 

[1  Salk.  285  (1703).] 

This  was  an  action  by  a  brewer  against  a  noble  lord 
for  beer  which  his  household  had  drunk.  The  practice 
at  the  plaintiff's  brewery  was  for  the  draymen  who  had 
taken  out  beer  during  the  day  to  sign  their  names  in  a 
book  kept  for  the  purpose  before  they  went  home.  The 
particular  drayman  who  had  taken  Lord  Torrington 
his  beer  was  dead,  but  he  had  duly  made  his  entry,and 
the  question  was  whether  it  was  admissible  evidence 
for  the  plaintiff.  It  was  held  that  it  was,  on  the  ground 
that  it  was  an  entry  made  by  a  disinterested  person  in 
the  ordinary  course  of  his  business. 


HIGHAM  v.  RIDGWAY.  [143,] 

[10  East,  109  (1808).] 

When  was  William  Fowden  born  ?  On  the  answer 
to  this  question  depended  large  estates  in  the  county 
of  Chester.  Elizabeth  Higharn  laid  claim  to  them  by 
virtue  of  a  certain  remainder  ;  but  those  who  contested 
her  right  said  that  her  remainder  had  been  barred  by 
a  recovery  suffered  on  April  16th,    1789,   by   one   Wil- 


370  DECLARATIONS  OP  DECEASED  PERSONS. 

Ham  Fowden,  since  deceased.  Mrs.  Higham's  answer 
to  this  was  that  on  the  the  day  named  William  Fowden 
had  not  yet  come  of  age,  and  was  therefore  incapable 
of  suffering  recoveries  and  barring  remainders.  So  it 
was  that  it  was  strenuously  disputed  on  which  side  of 
April  16th,  1768,  the  late  Mr.  Fowden  had  beeu  born. 
Was  he  or  was  he  not  of  age  on  April  16th,  1789  ?  It 
was  of  course  the  object  of  Mrs.  Higham  to  make  out 
that  he  was  born  later  than  April  16th  ;  and  -the  most 
important  piece  of  evidence  she  adduced  in  support  of 
that  view  was  an  entry  in  the  diary  of  a  man-midwife 
who,  like  Fowden,  had  long  since  joined  the  majority. 
In  that  diary,  under  the  head  of  April  22nd,  1768, 
there  was  this  important  entry  : — 

"W.  Fowden,  jun.'s,  wife, 
"Filius  circa  hor.  3  post  merid.  natus  H. 
"W.  Fowden,  jun., 

"Ap.  22,  nlius  natus 
"Wife,  £1  6s.  Id 
"Paid,  25  Oct.  1768." 

This  entry  was  admitted  in  evidence  on  the  ground 
that  it  was  a  declaration  against  interest,  the  law 
shrewdly  suspecting  that  no  one  would  put  himself 
down  as  paid  when  he  had  not  been. 

These  two  cases  establish  that  statements  made  by  deceased 
persons  are  admissible  in  evidence  when  they  were  made  in  the 
usual  course  and  routine  of  business,  or  when  they  were  made 
against  the  interest  of  the  declarant.  In  order  that  a  statement 
may  be  admissible  as  falling  within  the  first  of  these  two  classes, 
Four  con-  it  must  satisfy  four  conditions  (x) :  ''(1.)  That  it  is  an  entry  of 
ditions.  a  transaction  effected  or  done  by  the  person  who  makes  the  entry, 

(2.)  that  it  is  an  entry  made  at  the  time  of  such  transaction  or 
near  to  it,  (3. )  that  it  is  made  in  the  usual  course  and  routine  of 
business  by  that  person,  and  (4.)  that  he  was  at  that  time  a  per- 
son who  had  no  interest  to  mis-state  what  had  occurred,"  More- 
over, the  student  must  carefully  notice  that  when  the  entry  is 
admissible  as  having  been  made  in  the  ordinary  course  of  the 

(x)  Per  Brett,  L.  J.,  in  Polini  v.  Gray,  L.  J.  49  C'h.  at  p.  49. 


DECLARATIONS  OF  DECEASED  PERSONS.  371 

deceased  person's  business,  only  so  much  of  the  entry  as  it  was  the  Extra  infor- 
vui «'.-■  duly  to  make  it  admissible;  any  other  fact  which  happens  mation. 
to  be  stated  in  the  entry,  no  matter  how  naturally  it  occurs,  is 
excluded.     Thus,  in  one  well-known  case  (y)  it  became  necessary  Place  of 
to  show  that  a  person  had  been  arrested  in  South  Molton  Street,  arrest. 
The  officer  who  arrested  him  had  died  since  the  arrest,  but  it  was 
proposed  to  put  in   evidence  a  certificate  made  by  him  at  the 
time  of  the  arrest,  which  specified,  with  other  circumstances,  (he 
place  of  the  arrest.     It  was  held,  however,  that  although  the  cer- 
tificate would  have  been  admissible  to  establish  the  fact  of  the 
arrest,  it  could  not  be  accepted   in  evidence  to  show  where  the 
arrest  had  taken  place,  inasmuch  as  the  duty  of  the  officer  was  to 
annex  to  the  writ  a  certificate  stating  merely  the  fact  of  the  ar- 
rest, and  not  the  particulars  attending  it. 

A  different  rule,  however,  prevails  as  to  entries  admissible  by 
reason  of  being  contrary  to  interest.  Not  only  is  the  entry  al- 
lowed to  prove  the  particular  fact  which  is  against  the  writer's 
interest  (e.  g.,  that  he  has  been  paid),  but  any  other  facts  which 
may  happen  to  be  stated  in  the  entry.  It  will  be  seen  that,  if 
this  had  not  been  so,  Mrs.  Highani  would  not  have  been  able  to 
prove  by  the  entry  produced  the  date  of  Mr.  Fowden's  birth,  for 
the  only  part  of  that  entry  which  was  contrary  to  interest  was 
the  acknowledgement  of  payment,  and  that  fact,  however  inter- 
esting, would  scarcely  have  aided  the  good  woman's  contention. 

The  word  interest  in  the  expression  "contrary  to  interest"  re-  Meaning  of 
fers  exclusively  to  pecuniary  ox  proprietary  interest.  An  entry  "interest." 
(z),  for  instance,  by  a  deceased  clergyman  to  the  effect  that  he 
had  performed  a  certain  marriage  was  not  allowed  to  be  given  in 
evidence  to  prove  the  marriage  merely  because  the  marriage  had 
been  performed  under  circumstances  which  would  have  rendered 
the  officiating  clergyman  liable  to  a  criminal  prosecution.  Pro- 
vided, however,  that  a  pecuniary  interest  in  fact  exists,  the 
courts  are  not  critical  in  weighing  the  amount  of  it. 

In  a  recent  case  (a),  an  action  for  indemnity  in  respect  of  cer-  Massey  v. 
tain  shares  purchased  in  the  name  of  the  plaintiff  as  trustee,  the  Allen, 
plaintiff  sought  to  prove  that  the  shares  were  purchased  for  one 
of  the  defendants  by  his  stockbroker.  To  establish  this  the 
plaintiff  tendered  in  evidence  an  entry  made  by  the  stockbroker, 
who  had  died  before  the  trial,  in  his  day-book.  The  entry  was, 
however,  ruled  to  be  inadmissible,  because  it  might,  according 
to  the  turn  of  the  market,  have  proved  available  for  the  advantage 
of  the  stockbroker  as  well  as  against  him.  Nor  was  the  entry  al- 
lowed to  be  received  on  the  ground  that  it  had  been  made  In  the 


(y)  Chambers  v.  Bernasconi,     C.  &  F.  108. 
1  C.  M.  &  R.  347.  (a)  Massey  v.  Allen,  L.J.  49 

(z)  Sussex   Peerage  case,   11     Ch.  76. 


372  DECLARATIONS  OF  DECEASED  PERSONS. 

ordinary  course  of  business,  and  for  this  reason:  the  entry  was 
not  made  by  the  broker  in  the  discharge  of  any  duty  by  him.-  The 
day-book  in  which  the  entry  was  made  was  kept  by  the  broker 
simply  for  his  own  convenience. 

It  appears  to  be  a  moot  point  whether  a  declaration   is  admis- 
sible as  contrary  to  interest  when   it  is  the  only  evidence  of  the 
charge  of  which  it  shows  the  subsequent  payment  (b). 
Admissions         The  statements  of  persons  in  possession  of  land  explanatory  of 
by  persons  in  the  character  of  their  posssession  are,  if  made  in  disparagement 
possession  of  0f  the  declarant's  title,  good  evidence.     But  the  declarations  of 
owners  who  have  a  limited  interest  in  the  property  will  not  avail 
against  reversioners  or  remaindermen  (c). 

Verbal  dec-  The  student  will  understand  that  not  only  are  the  written  en- 
larations.  tries  of  a  deceased  person  admissible,  but  also  his  verbal  declara- 
tions, when  made  under  circumstances  which  satisfy  the  requisite 
conditions.  As  the  late  Lord  Justice  Thesiger  observed  (7/),"  The 
principle  upon  which  written  entries  of  a  deceased  person  are  ad- 
missible in  evidence  is  this,  that,  in  the  interests  of  justice,  where  a 
person  who  might  have  proved  important  material  facts  in  an  ac- 
tion is  dead,  his  statements  before  death — I  pass  over  for  the 
moment  whether  in  writing  or  verbal — relating  to  that  fact  are 
admissible,  provided  there  is  a  sufficient  guarantee  that  the 
statements  made  by  him  were  true.  It  is  considered,  and  pro- 
perly considered,  that  where  the  statements  made  by  a  person 
were  statements  against  his  interest,  those  statements,  at  all 
events  in  the  general  run  of  cases,  would  probably  be  true. 
Now,  is  there  any  reason  in  principle  why  there  should  be  a  dis- 
tinction made  between  the  written  entries  of  such  a  deceased 
person  under  such  circumstances  and  his  verbal  declarations?  I 
can  see  no  reason.  When  the  statements*  are  merely  verbal, 
there  is  every  reason  for  watching  more  carefully  the  evidence 
by  which  those  declarations  are  proved ;  but  provided  you  are 
satisfied  the  declarations  were  in  fact  made,  there  is  no  reason 
wdiatever  why  there  should  be  any  distinction  between  the  ad- 
missibility of  the  verbal  declarations  and  the  admissibility  of 
the  written  entries." 

It  was  the  practice  that  the  proceedings  of  the  Provost  and 
Fellows  of  King's  College,  Cambridge,  should  be  entered  in  a 
book  and  that  the  entries  should  be  signed  by  the  registrar  of 
the  college,  who  was  a  notary  public,  and  who  signed  the  entries 
in  that  character.  One  or  two  of  the  entries  were  not  so  signed. 
It  was  decided  that  an  unsigned  entry  was  not  admissible  in 


ib)  Doe   i'   Vowles,  1  Mo.   &  B.  341;  Crease  v.  Barrett.  1   C. 

Bob.  261;   R.   v.   Heyford,  2  S.  M.  &  R.  917. 
L.  C.  (d)  Bewley  v.   Atkinson,   L. 

(e)   R.  v.  Exeter,   L.    R.  4  Q.  J.  49  Ch.  at  p.  160. 


GIFT.  373 

evidence,  notwithstanding  thai  it  was  proved  to  he  in  the  hand- 
writing of  the  person  who  usually  made  the  entries  at  the  time 
when  it  was  made(e). 

F.  was  tenant  to  C.  with  a  promise  of  a  lease  foT  twenty-one 
years  from  September,  1851,  to  September,  1872,  at  the  rent  of 
£8-1  1  (is.  Afterwards  C.  entered  F.'s  name  in  his  rent  hookas 
the  tenant  of  128  acres  at  16s.  an  acre,-  at  yearlyrentof  £102  8s.. 
less  l' 1  for  county  cess  £lJ8  S.s.  "  Tenure  thirty-one  years  from 
September,  1872,  at  rent  of  16s.  per  acre,  allowed  £4  for  county 
cess."'  The  entry  was  in  C.'s  handwriting: — Held  that  it  was 
admissible  in  evidence  as  a  statement  against  the  proprietary 
and  pecuniary  interest  of  C.  (/). 

Neither  proof  of  an  entry  made  by  a  deceased  person  in  the  or- 
dinary course  of  business  in  a  postage  hook  of  a  letter  to  be  posted 
nor  proof  of  possession  by  the  deceased  person  for  the  purpose  of 
posting,  is  sufficient  evidence  of  posting  (g).  And  consult  the 
recent  cases  of  Newbould  v.  Smith,  29  Ch.  I)..  882,  53  L.  T.  137, 
33  W.  R.  690,  North,  J.  Edwards,  Ex  parte,  Tollemache,  In  Re, 
14  Q.  B.  D.  415— C.  A.  Revell,  Ex  parte,  Tollemache,  In  Re,  13 
Q.  B.  D.  720  ;  54  L.  J.,  Q.  B.  89,  51  L.  T.  376  ;  33  W.  R.  288— 
C.  A.  Turner,  In  Re,  Glenister  v.  Harding  29  Ch.  D.  985,  53  L. 
T.  528,  Chitty,  J.  The  Lovat  Peerage,  10  App.  Cases,  763,  H. 
L.,  Sc. 


Gift. 

IRONS  v.  SMALL.PIECE.  [144.] 

[2  B.  &  Ali>.  551  (1819).] 

Twelve  months  before  his  death,  and  while  he  be- 
lieved himself  to  be  still  in  the  prime  of  life,  Mr.  Irons, 
by  word  of  month,  made  his  son  a  present  of  a  pair  of 
horses.  The  horses,  however,  were  not  delivered  over 
by  the  donor  to  the  donee,  but  remained  in  the  father's 

(e)  Fox  v.  Bearblock.   17  Ch.         (g)  Rowlands  p.   De  Vecci,  1 

D.  429;  and  see Dysart Peerage  C.  &   E.   1<>,  Day,  J.,   and   see 

Case.  6  App.  Cases,  489.  D  (Ids  i>   Tuke,  25  Ch.   D.  617  : 

(/)  Conner  v.   Fitzgerald,  11  5.!  L.  Ch.  598  :  50  L.  T.  320  ;  32 

L.  R.  Ir.  106— V.-C.  W.  R.   121.  V.-C.  B. 


374 


GIFTS. 


l.  p., 

seal. 


under 


possession  until  his  death;  and  this  was  an  action  by 
the  son,  after  the  old  gentleman's  death,  to  obtain  pos- 
session of  them.  In  this  attempt,  however,  he  failed, 
on  the  ground  that  "  by  the  law  of  England,  there  must 
either  be  a  deed  or  instrument  of  gift,  or  there  must  be 
an  actual  delivery  of  the  thing  to  the  donee." 


Importance 
of  delivery. 

Declaration 
of  trust. . 


Giving 
cheques  to 

babies. 


Gift  to  per- 
son in  fidu- 
ciary relation 
presumed  to 

have 


And  it  is  said  that  the  necessity  for  delivery  is  no.t  dispensed 
with  though  the  chattel  is  already  in  the  possession  of  the  donee  (A). 

But,  even  where  there  is  neither  deed  nor  delivery,  if  the  donor 
declares  that  he  retains  possession  in  trust  for  the  donee,  equity 
will  enforce  the  trust.  But  the  declaration  must  be  pretty  clear. 
A  father  once  put  a  cheque  for  £900  into  the  hand  of  his  son  of 
nine  months  old,  saying,  ''  Look  you  here,  I  give  this  to  baby;  it  is 
for  himself,  and  I  am  going  to  put  it  away  for  him,  and  will  give  him 
a  great  deal  more  along  with  it. "  "Don't  let  him  tear  it,"  re- 
marked the  grey  mare.  "Never  mind  if  he  does,"  sharply  re- 
plied her  lord,  "  it  is  his  own,  and  he  may  do  what  he  likes  with  it. 
Now,  Lizzie," — this  to  the  nurse — "  I  am  going  to  put  this  away 
for  my  own  son."  Then  the  fond  parent  took  the  cheque  away 
from  the  unappreciative  infant,  and  locked  it  away  in  an  iron 
safe.  A  week  afterwards,  meeting  his  solicitor,  he  said,  "  I  shall 
come  to  your  office  on  Monday  to  alter  my  will,  that  I  may  take 
care  of  my  son."  The  same  day — such  is  life  !— he  died,  and  the 
cheque  was  found  amongst  his  effects.  It  was  held  that,  though 
a  parol  declaration  of  trust  in  favour  of  a  volunteer  may  he  valid, 
there  had  under  the  circumstances  been  no  gift  to,  or  valid  decla- 
tion  of  trust  for,  the  son  (i).  "It  was  all  quite  natural,"  re- 
marked Lord  Cran  worth,  L.C.,  "but  the  testator  would  have 
been  very  much  surprised  if  he  had  been  told  that  he  had  parted 
with  the  £900,  and  could  no  longer  dispose  of  it.  It  all  turns 
upon  the  facts,  which  do  not  lead  me  to  the  conclusion  that  the 
testator  meant  to  deprive  himself  of  all  property  in  the  note,  or 
to  declare  himself  a  trustee  of  the  money  for  the  child." 

"When  a  fiduciary  or  confidential  relation  exists  between  the 
donor  and  the  donee,  there  is  presumption  that  undue  influence 
has  been  exercised  by  the  donee,  and  the  onus  lies  on  him  of  show- 
ing that  the  transaction  is  one  that  can  be  supported.  Thus,  a  do- 
nation from  achild  to  a  parent  (k),  or  fromaward  to  a  guardian  I  /), 


(A)  Shower  v.  Pilch,  4  Ex.  478. 

(i)  Jones  v.  Lock,  1  Ch.  App. 
25;  and  see  Ellison  v.  Ellison, 
6  Ves.  656  ;  Ex  parte  Pye,  18 
Ves.  140;  and  Donaldson  v. 
Donaldson.  Kay,  711. 

[k)  See  Wright  v.  Vander- 
plank,  2  K.  &  J.  1  ;  Cocking  v. 


Pratt.  1  Yes.  401  :  Blackborn  v. 
Edgeley,  1  P.  Wms.  600  :  and 
Firmin  v.  Pulham,  2  De  G.  & 
Sm.  99. 

(/)  See  Hylton  v.  Hylton,  2 
Ves.  549,  and  Hatch  v.  Hatch, 
9  Ves.  296. 


GIFTS.  375 

is  looked  upon  with  great  suspicion.     So,  as  the  leading  case  (m)  y,ocn  procur- 
on  the  subject   shows  us,  silly  women   require  to  he  protected  ed  by  undue 
against  designing  clergymen.   "  Perhaps  no  general  rule  can  well  influence, 
be  laid  down  as  to  what   amounts  to  undue  influence:  that  will 
be  a  question  for  the  judge  to  decide  upon  the  circumstances  of 
each  particular  case,  and  such  circumstances  as  the  non-interven- 
tion of  a  disinterested  person,  or  professional  adviser,  on  the  behalf 
of  the  donor — especially  if  the  donor  is,  from  age  or  weakness  of 
disposition,  likely  to  he  imposed  upon — the  statement  of  a  consid- 
eration where  there  was  actually  none,  the  absence  of  a  power  of  re- 
vocation, the    improvidence  of  the   transaction,  furnish   a  probable, 
though  not  always  a  certain,  test  of  undue  influence  or.fraud  "  (n). 

The  two  very  recent  cases  of  Mitchell  r.  Homfray  (o)  and  Tay-  . 

lor  v.  Johnston  (}))  may  just  be  mentioned  here. 

The  action  in  the  former  case  was  by  the  executors  of  a  Mrs.  The  doctor's 
Geldard  to  recover  a  sum  of  £800  from  the  defendant,  who  had  best  custom- 
acted  as  her  medical  attendant.  The  £800  had  been  given  by  Mrs.  er- 
■Geldard  to  the  defendant  while  she  was  his  patient,  and  without 
her  having  any  independent  advice;  but  the  doctor  had  not  been 
guilty  of  any  undue  influence;  and,  after  the  relation  of  physi- 
cian and  patient  had  ceased,  Mrs.  Geldard  elected  to  abide  by  the 
gift,  and  did,  in  fact,  abide  by  it  during  the  remaining  three  or 
four  years  of  her  life.  Under  these  circumstances  it  was  held 
that  the  gift  could  not  be  impeached  after  Mrs.  Geldard's  death, 
notwithstanding  that  it  was  not  proved  that  the  donor  was  aware 
that  the  gift  was  voidable  at  her  election.  "In  Rhodes  v.  Bate" 
(q),  said  Lord  Selborne,  L.  C,  "it  was  laid  down  in  clear  terms 
that,  in  order  to  uphold  a  gift  made  to  a  person  standing  in  a  con- 
fidential relation,  the  donor  must  have  had  competent  and  inde- 
pendent advice  in  conferring  it.  This  is  undoubtedly  the  rule 
■so  long  as  the  confidential  relation  exists ;  but  it  is  not  laid  down  in 
Rhodes  v.  Bate  that  advice  of  that  kind  is  necessary  when  the  con- 
fidential relation  has  come  to  an  end,  and  the  donor  is  no  longer  sub- 
ject to  its  influence.'"  "If  the  transaction,"  said Baggallay,  L.  J., 
"was  not  formally  ratified,  it  was  at  all  events  adopted ;  and,  for 
three  years  before  her  death,  the  testatrix  kept  to  her  determina- 
tion not  to  impeach  it." 

In  Taylor  v.  Johnston  (r)  the  action  was  by  personal  repre-   .  gtrone- 
sentatives  for  much  the  same  purpose  as  in  the  case  last  referred  minded 
to,  and  it  was  held  that,  in  the  absence  of  proof  of  the  exercise  young  lady. 
of  control  or  influence  on  the  part  of  the  donee,  or  of  the  exist- 
ence of  the  relation  of  guardian  and  ward  between  the  donee  and 

(m)    Hugucnin  v.    Baseley,  14  in  re  Parker,  Barker  v.  Barker, 

Yes.  27:5.  '  16  Ch:  D.  44. 

(n)  2  Wh.  &  T.  Eq.  L.  C,  584.         (q)  L.  R.  1  Ch.  252. 
(o)  8  Q.  B.  D.  587.  (r)  19  Ch.  D.  603. 

(p)  19  Ch.  Div.  603,  and  see 


37G 


GIFTS. 


Donaiiones 
mortis  causd. 


Attitude  of 
donor. 


Recovery  or 
revocation. 


Actual  de- 
livery neces- 
sary. 


Mere  symbol 
will  not  do, 
but  key  will. 

Receipts  for 

South  Sim 
annuities. 


the  donor,  a  gift  of  her  property  within  a  month  before  her  death  by 
an  infant  of  twenty,  of  business  habits,  firm  will,  ami  fully  capable  of 
managing  her  own  affairs,  l<>  a  relative  with  whom  she  had  been  liv- 
ing from  the  time  of  her  lather's  death  live  months  before,  is  not 
invalid.  "  She  was  at  this  time. "  said  the  court,  "in  a  moribund 
state,  as  nobody  can  doubt.  The  doctor  who  spoke  to  the  state 
of  her  health  speaks  of  it  as  leading,  of  her  death  as  certain,  but 
of  her  mind  as  perfectly  clear,  her  actions  wholly  uncontrolled.  Un- 
der these  circumstances  it  is  that  she  made  the  donation  in  ques- 
tion. Now,  in  my  opinion,  it  is  perfectly  lawful,  under  such  cir- 
cumstances, for  an  infant  to  make  a  donation  If  the  relation- 
ship of  guardian  and  ward  had  subsisted, ,"  that  would  have 

been  a  very  different  thing. 

The  last  mentioned  case  seems  to  lead  us  gently  and  naturally 
to  the  consideration  of  what  are  learnedly  called  donationes  mortis 
causa. 

A  donatio  mortis  causd  is  a  conditional  gift  of  personalty  made 
in  contemplation  of  death.  The  donor  would  perfer  (.s)  that  he 
himself  should  remain  the  owner  of  the  thing  he  gives,  rather 
than  that  it  should  have  a  new  owner,  whether  the  donee  or  any- 
body else;  but  he  is  very  ill  and  expects  to  die,  and,  knowing  that 
he  cannot  carry  his  property  away  with  him,  he  hands  it  over  to 
the  donee,  to  be  his  in  the  anticipated  event  of  death.  But  the 
gift  will  be  defeated  not  only  by  the  donor's  getting  better  (I),  but 
also  by  his  revoking  (u)  it.  And  even  though  the  donor  does  not 
expressly  say  that  he  will  want  the  thing  back,  if  by  any  acci- 
dent he  recovers,  the  law  will  imply  a  condition  to  that  effect  (x). 
There  must  be  an  actual  delivery  of  the  thing  to  the  donee,  or  to 
some  one  else  for  the  donee's  use  (y),  and  the  donor  must  part, 
not  only  with  the  possession,  but  the  dominion  (z);  though  the 
gift  may  be  saddled  with  a  trust  (a).  A  mere  delivery  to  an  agent 
as  agent/or  the  donor  will  not  do  (5).  It  is  not  sufficient  to  de- 
livers symbol ;  but  where  the  nature  of  thethingwill  not  admit  of  a 
corporeal  delivery,  a  delivery  of  the  means  of  coining  at  fhepossession 
{e.g., a  key)  will  be  effective  (e).  In  the  leading  case  (d)  on  dona- 
t  joins  mortis  <-«usd  it  was  held  that  the  delivery  of  receipt  for  South 
Sea  annuities  was  not  enough  to  pass  the  stock,  notwithstanding 


(.si  FA,  in  suninia,  mortis 
causa  donatio  est  cum  magis  se 
(piis  velit  habere  quam  cum  cui 
donatur,niagisqueew?i  cui  donat 
quam  heredem  suum.  .lust. 
[nst.,  Lib.  2,  Tit.  7. 

I  / 1  Shiuilandr.Willott,  3  Mac. 
&  G.  664. 

U  Sec  Edwards  v.  Jones.  1 
My.  &  Cr.  233,  and  Tate  v.  Hil- 
bert2  Yes.  jun.   120. 

<<  Gardiner  v.  Parker,  3 
Madd.   184. 

(y)  Drury  r.  Smith,  1  P.  Wins. 


404. 


(z)  Hawkins  v.  Blewitt,  2  Esp. 
663. 

(a)  Blount  v.  Burrow,  4  Bro, 
C.  C.  75,  and  Hills  v.  Hills,  8 
M.  &  W.  401. 

(b)  Farquharson  v.  Cave,  2 
Coll.  356. 

(c  Jones  r.Sclbv.Prec.Chanc. 
300;Smith  v.  Smith. 2  Stra,955; 
and  Bunn  v.  Markham,  7  Taunt. 
224. 

(d)   Ward  v.  Turncr,2  Ves.431. 


GIFTS.  377 

that  there  was  strong  evidence  of  the  intent  to    make  a  gift  of 
such  annuities. 

A  donatio  mortis  causd,  probably  cannol  be  made  by  d-eed  with-  I  teed  without 
out  delivery  (<   .  delivery. 

There  may  be  a  donatio  mortis  causd  <>i'  bonds  (/>,  bank-  Documents. 
notes  (g),  mortgage  deeds  (A),  policies  of  insurance  (/),  or  prom- 
issory notes  payable  to  order  though  not  indorsed  \k)  ;  butnotof 
cheques  (/),  or  railway  stock  (m).  An  old  farmer,  some  years 
ago.  being  in  his  last  illness,  gave  his  nephew,  who  had  for  some 
years  lived  with  him  and  helped  him  in  his  business,  a  cheque 
for  £4000,  and  with  it  his  banker's  pass  book.  Then  the  old 
man  died,  having  provided  properly,  as  he  thought,  for  his 
nephew.  But  when,  after  his  uncle's  death,  the  young  man 
went  to  the  bankers,  they  refused  to  cash  the  cheque  ;  and  when 
■he  came  afterwards  to  Lincoln's  Inn,  he  found  that  neither  could 
the  transaction  be  supposed  as  a  valid  donatio  mortis  causd  (n). 

A  donatio  mortis  causd  differs  from  a  legacy  in  the  two  points  How  donatio 
that  neither  probate  (o)  nor  the  executor's  assent  (p)  are  neces-  '"'!"''"*  "<"-sa 
sary.     It  differs  from  a  gift  inter  vivos  (such  as  Ironsx.  Smallpiece  ]eeacv  ,mtj 
has  to  do  with)  in  the  three  points  that  (1.)  it  is  revocable,  (2.)  from  gift 
it  is  liable  to  legacy  duty  (q),  and  (3.)  to  debts  (/•).  inU  r  vivos. 

An  attempt  to  make  an  irrevocable  gift  inter  vivos  cannot  be  Unsuccessful 
supported  as  a  donatio  mortis  causd  (s)  ;    nor  can  an  invalid  testa-  efforts. 
mentary  gift  be  vivified  in  this  way  (I). 

It  may  be  questioned,  incidentally,  whether,  in  a  will-making  Ought 
nation  like  ours,  donationcs  mortis  causa    are  quite  consistent  with  donationes 
sound  policy.     At  all  events,  as  was  long  ago  pointed  out  by  an  +  ■,  ,...u(  we(j 
eminent  judge  («),   they  ought   to  be  confined  to  those  cases 
where  the  donor  is  suddenly  taken  with  mortal  sickness,  and 
has  no  opportunity  of  making  or  altering   his  will  with  proper 
legal  advice  and  assistance.     By  all   means,   in  other  cases,  let 
the  dying  man  make  presents  to  those  dear   friends  and  faithful 
servants  who  may  stand  round  the  bedside,  but  let  them  be  ab- 
solute, not  conditional,  gifts. 

(e)  See  Wms.  Exors.(8thed.),         (n)    Beak  v.  Beak,  41  L.   J. 
p.  786.  Ch.  470. 

(f)  Snelgrove    v.    Bailey,    3         (o)  Thompson  v.  Hodgson,  '2 
Atk.  214.  .Stra.  777,  and  Rigden  v.  Vallier, 

(g)  Millei    v.     Miller,     3    P.     2  Ves.  sen.  258. 

Wms.  356.  (p)  Tate   p.    Hilbert,   2  Ves. 

(A)  Duffield  v.  Elwes,  1  Bligh.  jun.  120. 
N.  S.  498.  (q)  36  Ceo.  3,  c.  52,  s.  7.  and 

(i)  Witt  v.  Amiss,  1  B.  &  S.  8  &  9  Vict.  c.  76,  s.  4. 
109.  (rl   Smith     v.     Casen,     1     P. 

i/,- 1   Veal   v.    Veal,    -27    Beav.  Wms.  40G. 
303,  and  In  re  Mead,  15  Ch.  I).  (s)   Edwards  r.  Jones,  1    My. 

651.  .  &  Cr.  226. 

(/)  Hewitt  p.    Kay,   L.    R,    6         it)   Mitchell  r.  Smith,  12  W. 

Eq.  275.  R.  941. 

(m)   Moore  v.  Moore,  L.  R.  18         (m)   Hedges  v.  Hedges,   Prec. 

Eq.  474.  Ch.  269. 


378  GIFTS. 

Married  Eaving  regard   to  the  Married   Women's  Property  act,  1882, 

Women's         tin-  whole  rule  of  law  that  husband  and  wife  were  for  most  pur- 
Property  Act,  poSes  one  person,  so  that  under  a  gift  by  will  to  a  husband  and 
'  wife  and  a  third  person,  the  husband  and  wife  took  one  moiety 

<'1"  t"  between  them,  the  third  person  taking  the  other  moiety,  is  no 

W|j-L/  longer  applicable  to  such  a  gift  under  a  will  that  has  come  into 

operation  since  the  commencement  of  that  Act  (x). 

In  Standing  v.  Bowring  (y),  the  plaintiff,  a  widow,  in  the  year 
1880,  caused  a  sum  of  £6000  Consols  to  be  transferred  into  the 
joint  names  of  herself  and  the  defendant,  who  was  her  god-son, 
and  in  whose  welfare  she  took  great  interest.  This  transfer  was 
not  made  known  to  the  defendant.  In  1882  the  plaintiff,  then 
eighty-eight  years  old,  married  a  second  husband,  and  soon 
afterwards  applied  to  the  defendant  to  retransfer  the  stock  into 
her  name  alone.  It  was  decided  that  the  transfer  was  originally 
made  with  the  deliberate  intention  of  benefiting  the  defendant, 
and  not  with  a  view  to  the  creation  of  a  trust.  The  court  would 
not,  therefore,  compel  the  defendant  to  re-transfer  the  stock. 
Donatio  mor-  A  cheque  payable  to  the  donor  or  order,  and  without  having 
tis  causa.  been  endorsed  by  him,  given  by  the  donor  during  his  last  illness 

to  his  son,  stands  on  the  same  footing  as  a  promissory  note  or 
bill  of  exchange  payable  to  the  donor  or  order,  and  following 
Veal  v.  Veal  (27  Beav.  303),  will  pass  to  the  son  by  way  of 
Inter  vivos.  donatio  mortis  causa  (z).  A  clear  intention  on  the  part  of  the 
donor  to  give,  acted  upon  by  the  donee,  constitutes  a  valid  gift 
inter  vivos,  without  actual  delivery  (a).  In  1866  A.,  soon  after 
the  birth  of  his  son  T.,  purchased  a  pipe  of  wine  for  his  son,  and 
had  it  bottled  and  laid  down  in  his  cellar,  and  from  that  time  it 
remained  intact  in  the  cellar,  and  was  known  in  the  family  and 
amongst  their  friends  as  T.'s  wine.  In  1885  A.  became  bank- 
rupt. It  was  decided  that  there  was  not  sufficient  evidence  of  an 
intention  to  make  an  immediate  present  gift  of  the  wine  to  T., 
and  that  it  passed  to  the  trustee  in  bankruptcy  (5). 
As  to  gifts  defrauding  creditors,  see  ante. 

(,r)  March  In  re,   Mauder  v.  Pechv  Ridge  v.   Burrow,  53   L. 

Harris,  24  Ch.  D.  222,  52  L.   J.  T.  5,  C.  A. 

Chan.   680  ;  49  L.   T.   168  ;  31  .  (a)  Harcourt  In  re,  Danby  v. 

W.  R.  885  ;  48  J.  P.  23— Chitty,  Tucker,  31  W.  R.  578  ;  Pollock, 

J.  B.  Dictum    of    Parke.    B.,     in 

0>  29  Ch.  D.  341  ;  54  L.   J.,  Ward  v.  Audland  (16  M.  &  W. 

Ch.  10  ;  51  L.  T.  591  ;  33  W.  R.  871)  followed.     Irons  v.  Small- 

78 — Peai'son,  J.  piece,  not  followed. 

(z)  Clement  v.  Cheesemen,  27  (b)  In  re  Ridgway,  15  Q.  B. 

Ch.,    D.    631  :   33  W.  R.    40—  D.  447. 
Chitty,  J.,  and  see  Shield  In  re 


HIGHWAYS.  379 


Highways. 

DOVASTON  v.  PAYNE.  £145.] 

[2H.Bi..  527  (1795).] 

This  was  an  action  for  wrongfully  taking  and  im- 
pounding cattle,  and  the  legal  gentleman  who  drew  the 
pleadings  for  the  plaintiff  ruined  his  case  by  saying 
that  the  cattle  were  "m"  the  highway,  when  he  ought 
to  have  been  careful  to  say  that  they  were  "passing 
along  "  it. 

A  highway  may  be  defined  as  a  passage  which  all  the  Queen'' s  sub-  What  is  a 
jects  have  a  right  to  use.     Of  highways  there  are  several  kinds  ;  highway? 
such  as  footpaths,  turnpikes,  streets  and  public  rivers.     So.  too, 
a  cut  dc  sac  may  be  a  highway  just  as  much  as  a  through  thorough- 
fare (c). 

The  amount  of  interest  that  the  public  have  in  a  highway  is 
well  put  by  Heath,  J.,  in  Dovaston  v.  Payne: — "The  property  is  Easement. 
in  the  owner  of  the  soil,  subject  to  an  easement  for  the  benefit  of 
the  public."     An  easement  nothing  more.     The  public  have  a 
right  to  use  it  for  all  the  purposes  of  a  highway  ;  but.  subject  to 
the  public  easement,  the  right  of  property  remains  in  the  owner 
of  the  soil.     Thus,  in  R.  v.  Pratt  (d)  the  appellant,  whilst  on  a  Pheasant 
highway,  carrying  a  gun,  had  sent  a  dog  into  a  covert  on  one  shooting  in 
side  of  the  highway.     Immediately  afterwards  a  pheasant  flew      e  nignway- 
across  the  highway,  at  which  he  fired.  Under  these  circumstances, 
the  appellant  was  held  rightly  convicted  of  trespass  on  the  high- 
way under  the  Day  Poaching   Act.     Lord  Campbell  observed  :         . 
"  No  doubt  the  appellant  was  a  trespasser  when  he  went  upon  the 
highway  as  he  did  for  the  purpose  of  searching  for  game,  and  for      . 
that  purpose  only,  and  I  think  he  must  be  considered  as  being  in 
search  of  game  there." 

In  the  absence'of  any  express  evidence  tothecontrary^the  ordi-  Presumption 
nary  presumption  is  that  the  landowners  on  either  side  of  the  of  ownership. 
highway  are  entitled  "to  the  soil  of  the  road  which  bounds  their 
land  usque  ad  medium  filurn  vise.     This  presumption  is  doubtless 
founded  on  the  assumption  "that  in  making  a  road  for  public 
convenience,  the  owners  of  the  adjoining  land  have  sacrificed  a  *• 

portion  of  their  property  in  order  to  devote  it  to  public  purposes" 
(e).  And  where  the  presumption  arises,as  will  be  readily  supposed, 

(c)  Vernon  v.  Vestry  of   St.         (c)  Per  Cockburn,   C.   J.,   in 

James,  Westminster,  49  L.   J.  Leigh   v.  Jack,  L.  J.  49  Ex.  at 

Ch.  130.  p.  222. 

{d)  L.  J.  24  M.  C.  113. 


380  HIGHWAYS. 

the  rule  is  that  the  sale  of  an  estate  bounded  by  roads  operates  to 
pass  to  the  purchaser  the  property  in  the  soil  of  those  roads  usque 
ad  medium  filum  viae.  It  must  not,  however,  be  forgotten,  that  this 
presumption  is  capable  of  being  easily  rebutted,  as,  for  example, 
by  showing  that  the  road  was  originally  set  out  under  an  enclos- 
ure Act;  And,  indeed,  in  all  districts  in  which  the  Public  Health 
Act,  1875,  is  in  force,  the  soil  of  the  highway  is  vested  in  the 
local  authority,  but* only  to  such  a  depth  as  is  usually  required 
for  the  ordinary  work  which  the  authority  would  need  to  execute 
in  and  upon  the  highway  (/). 

It  may,  too,  be  added  that  the  presumption  as  to  the  ownership 
of  the  soil  of  waste  land  adjoining  a  road  is  that  it  belongs  to  the 
owner  of  the  adjoining  enclosed  land,  and  not  to  the  lord  of  the 
manor  (g). 
Dedication  of  The  dedication  of  a  highway  to  the  public  is  a  question  of  in- 
high  way.  teni ion,  such  intention,  however,  being  capable  of  being  inferred 
from  long  user.  "If  the  owner  of  the  soil  throws  open  a  pas- 
sage, and  neither  marks  by  any  visible  distinction  that  he  means 
to  preserve  all  his  rights  over  it,  nor  excludes  persons  from  pass- 
ing through  it  by  positive  prohibition,  he  shall  be  presumed  to 
have  dedicated  it  to  the  public.  Although  the  passage  in  ques- 
tion was  originally  intended  only  for  private  convenience,  the 
public  are  not  now  to  be  excluded  from  it,  after  being  allowed  to 
use  it  so  long  without  any  interruption  "  (h).  But. the  user  by 
the  public  is  merely  evidence  of  the  intention  to  dedicate',  and  a 
single  act  of  interruption  by  the  owner  is  of  much  more  weight 
upon  a  question  of  intention  than  many  acts  of  enjoyment  (/).  Of 
course,  if  the  act  of  dedication  be  unequivocal,  the  dedication  may 
take  place  immediately. 
Limited  It  is>  moreover,  worthy  of  remark  that  the  dedication  of  the 

dedication.  highway  may  be  limited  as  to  purpose  e.  g.,  it  may  be  for  all  pur- 
poses except  that  of  carving  coal  (k),  or  as  in  the  case  of  a  bridge 
which  is  to  be  used  only  when  the  river  is  so  swollen  that  per- 
,  sons  attempting  to  ford  it  would  be  drowned,  or  of  a  footway 
which  is  liable  to  be  ploughed  up  occasionally.  But  the  dedica- 
tion must  be  general  to  the  public,  and  not  merely  to  a  limited 
part  of  the  public,  as  a  particular  parish  (/)  ;  such  a  partial  dedi- 
cation is  simply  void,  and  will  not  operate  in  law  as  a  dedication 
to  the  whole  public. 
Take  it  as  It  is  to  be  observed,  also,  that  a  highway  may  be  dedicated 

you  find  it.      with  an  obstruction  on  it,  so  that  the  dedicator  would  not  be 
responsible  for  an  accident  happening  by  reason  thereof  (m). 

(f)  Coverdaler.  Charlton,  L.     Huskinsm,  11  M  &  W.  827. 

R.  4  Q.  B.  D.  104  ;  L.  J.  48  Q,         (k)  Stafford  v.  Coyney,  7   B. 

B.  128.  &  C.  257. 

(g)  Doe  d.  Pring  v.  Pearsley,         (I)  Hildreth    /•.  Adamson,  25 
7B.&C.  304.  J.  P.  645. 

(h     Per   Ellenborough,  C.  J.,         (m)  Fisher  v.  Prowse,  6  L.T. 
in  King  v.  Lloyd,  1  Camp.  260.      X.  S.  711. 
i     /'<  /•  Parke.  B. .  in  Poole  v. 


HIGHWAYS.  .')Nl 

In  a  recent  ease  (»)  the  point  arose  (through  it  heeame  nnnec-  Can  a  lessee 
essary  to  decide  it)  whether  a  lessee  can  dedicate  to  the  public,  dedicate? 
Probably,  however,  it  may  be  said  thai  lie  has  no  such  power,  at 
any  rate  except  as  against  himself  and  his  assignees.  But  it  is 
to  be  remembered  that  long  user,  as  of  right,  and  openly,  is  evi- 
dence from  which  assent  on  the  part  of  the  owner,  whoever  he 
rnay  be,  is  prima"  facie  to  be  inferred.  The  burden  lies  upon  the 
person  who  seeks  to  deny  the  inference  from  such  user,  to  show 
negatively  that  the  state  of  the  title  was  such  that  the  dedi- 
cation was  impossible,  and  that  no  one  capable  of  dedicating  ex- 
isted (o). 

The  obligation  of  repairing  a  highway  generally  falls  on  the  Mending  the 
occupiers  of  land  in  the  parish  through  which  the  highway  runs  ;  roao-s- 
but  it  is  not  within  the  scope  of  this  work  to  describe  the  ma- 
chinery provided  for  the  execution  of  these  repairs  by  the  various 
highway  authorities,  e.  g.,  surveyors  of  highways,  highway 
boards,  and  local  boards  (p).  It  may,  however,  be  mentioned 
that,  when  a  road  was  dedicated  to  the  public,  at  common  law 
the  consequence  followed  that  it  became  repairable  by  the  inhab- 
itants of  the  parish  or  district.  But  now,  under  the  provisions 
of  the  General  Highway  Act,  1835,  the  inhabitants  cannot  be 
compelled  to  repair  a  road  so  dedicated  as  a  highway  unless  cer- 
tain things  are  done — amongst  others,  unless  the  road  be  made 
in  a  substantial  manner  and  to  the  satisfaction  of  the  highway 
authorities  (q). 

Sometimes,  too,  the  burden  of  repairing  falls  on  a  private  per-  Private  per- 
son by  prescription,  or  ratione  tenurse,   i.    e.,  by  reason  of   the  son  having 
tenure  of  lands.*    But  to  constitute  such  liability,  it  must  have       <-°  l  ■ 
existed  from  time  immemorial.     So,  also,  a  man  may  be  bound 
to  repair  ratione  clausunc,  i.  c,  as  the  occupier  of  lands  adjoining 
the  highway  which  he  has  enclosed,  and  over  which  the  public 
had  a  right  to  go  in  case  the  road  became  incommodious  or  im- 
passable. 

"Once  a  highway,  always  a  highway,"  is  a  familiar  common  law  Stopping  up 
maxim  ;  but  power  is  now  given  to  justices  of  the  peace,  under  highways, 
certain  circumstances,  to  divert  or  extinguish  highways  ;  and  it 
has  been  held  in  a  recent  case  (r)  that  when  access  to  a  highway 
has  become  impossible,  in  consequence  of  the  ways  leading  to  it 
having  been  legally  stopped  up,  it  ceases  to  be  a  highway.  "The 
great  difficulty  here,"  said  Denman,  J.,  in  the  case  referred  to, 
"seems  to  arise  from  the  familiar  dictum,  'once  a  highway, 
always  a  highway,'  and  from  the  necessity  of  now,  for  the  first 
time,  placing  a  limitation  on  it.  But  I  think  we  are  compelled 
to  hold  that  this  is  a  case  where  that  which  formerly  was  a  high- 

(»)  Att.-Gen.  v.  Biphoscated  (q)  See  per  Blackburn,  J.,  in 

Guano  Co..  L.  R.  13  Ch.  D.  327.  R.  v.  Dukinfield,  L.  J.  32  M.  C. 

(0)  See  Powers  v.    Bathurst,  235. 

L.  J.  49  Ch.  294.  (/•)  Bailey  v.  Jamieson,  L.  R. 

(p)  See  Shirley's  Magisterial  1  C.  P.  D.  329. 
Law,  pp.  104—110. 

26   COMMON   LAW. 


382 


HIGHWAYS. 


Duties  of 
local  board. 


Dedication. 


Indictment 
for  obstruc- 
tion. 


What's  the 
highway? 


Reserved 
tolls. 


way,  but  which,  though  it  has  not  been  stopped  by  a  statutory 
process,  has,  by  reason  of  legal  acts  at  either  end  of  it,  ceased  to 
be  a  place  to  which  the  Queen's  subjects  can  have  access,  loses 
its  character  of  a  highway." 

In  Kent  v.  Worthing  Local  Board  of  Health  it  was  decided 
that  it  was  the  duty  of  the  defendants  to  make  such  arrange- 
ments that  works  under  their  care  should  not  become  a  nuisance 
to  the  highway,  and  the  plaintiff  recovered  damages  from  the 
defendants  for  injuries  to  his  horse  caused  by  a  valve  cover  in  the 
road  being  exposed  by  the  ordinary  wear  of  the  traffic,  and  caus- 
ing the  horse  to  fall  (.s). 

A  court  which  was  not  a  thoroughfare  had,  for  seventy  or  eighty 
years,  been,  at  all  hours,  open  to  the  public,  and  had  been  paved, 
lighted,  and  cleansed  by  the  parish  vestry,  and  the  owners  of  the 
soil  were  not  shown  to  have,  during  that  time,  exercised  any  right 
of  ownership  over  the  soil  of  the  court.  It  was  decided  by  Yice- 
Cbancellor  Malins  that  the  courthad  been  dedicated  to  the  public, 
so  as  to  bring  it  under  the  vestry  according  to  the  Local  Manage- 
ment Act  of  the  Metropolis  (t). 

Upon  the  trial  of  an  indictment  for  obstructing  a  highway,  the 
defendant  was  acquitted.  It  was  decided  that  a  new  trial  on  the 
ground  of  misreception  of  evidence,  misdirection,  and  that  the 
verdict  was  against  evidence  could  not  be  granted  (w). 

The  defendant  left  an  agricultural  roller  between  the  hedge 
and  the  metalled  part  of  the  road,  having  removed  it  from  a  field 
on  the  opposite  side  of  the  road  for  his  own  convenience.  A  pony 
drawing  a  carriage  in  which  plaintiff's  wife  was  riding,  shied  at 
the  roller,  upset  the  carriage,  and  the  plaintiff's  wife  was  killed. 
It  was  decided  that  the  roller  was  an  obstruction  to  the  highway  ; 
that  it  was  an  unreasonable  user  Of  the  highway  by  the  defend- 
ant, and  that  the  plaintiff  was  entitled  to  recover  damages  for 
the  death  of  his  wife  under  Lord  Campbell's  Act  (re). 

The  right  of  the  public  to  use  a  highway  extends  to  the  whole 
road  and  not  merely  to  the  part  used  as  via  trita.  Therefore 
ditches  fifteen  inches  wide  and  ten  inches  deep,  cut  completely 
across  the  strips  of  grass  land  at  the  sides  of  roads,  so  as  to 
amount  to  a  danger  to  persons  walking  along  the  strips,  amount 
to  a  nuisance  and  obstruction  (y). 

The  promoters  of  an  intended  road  by  deed  declared  that  the 
road  should  not  only  be  enjoyed  by  them  for  their  individual  pur- 

(«)  10  Q.  B.  D.   118  ;  and  see     D.  198. 


White  v.  Hindley  Local  Board, 
10  Q.  B.  219,  and  Blackmore  ». 
Yestry  of  Mile  Old  Town,  9  Q. 
B.  D.  451. 

(t)  Y'ernon  v.  Vestry  of  St. 
James,  Westminster,  16  Ch.  D. 
449. 

(w)  Reg.  v.  Duncan,  7  Q.  B. 


(x)  Wilkins  v.  Day.49  L.T.39, 
32  W.  R.  123.  48  J.  P.  6— D.  ; 
and  see  Gully  v.  Smith,  12  Q. 
B.  D.  121,  53  L.  J.  M.  C.  35,  48 
J.  P.  309,— D. 

(^)Nicol  v.  Beaumont,  53  L. 
J.,  Ch.  853,  SOL.  T.  112,  Kay,  J. 


highways.  383 

poses,  but  ' '  should  he  open  to  the  use  of  the  public  at  large  for  all 
manner  of  purposes  in  all  respects  as  a  common  turnpike  road" 
but  subject  to  the  payment  of  tolls  by  the  persons  using  it.  It  was  de- 
cided that  this  was  not  a  dedication  of  the  road  to  the  public, 
and  that  the  road  was  not  a  highway  repairable  by  the  inhabi- 
tants at  large  under  S.  150  of  the  Public  Health  Act  1875.  It 
seems  that  without  legislative  authority,  an  individual  cannot 
dedicate  a  road  to  the  public  if  he  reserves  the  right  to  tolls  for 
the  user  (.-). 

Persons  using  a  traction  engine  and  trucks  on  a  highway  may  Traction 
be  indicted  as  a  nuisance,  e.ej.  if  they  create  a  substantial  oh-  engine, 
struction  and  occasion  delay  and  inconvenience  to  the  public  sub- 
stantially greater  than  such  as  would  arise  from  the  use  of  carts 
and  horses  (a) 

The  reader  would  do  well  to  refer  to  the  following  cases: —         Other  cases. 

Hollins  v.  Yerney,  53  L.  T.  47.  P.  v.  Cross,  3  Camp.  224.  Hall 
v.  Corporation  of  Bootle,  44  L.  T.,  N.  S.  873.  Finch  v.  G.  W. 
Rv.  Co.,  5  Ex.  D.  254.  Mayor  of  London  v.  Eiggs,  49  L.  J.  Ch. 
297.  Tillett  v.  Ward,  10  Q.  B.  D.  17.  Normanton  Gas  Co.  vi 
Pope  and  Pearson,  74  L.  T.  209.  The  Queen  v  Justices  of  Essex, 
11  Q.  B.  D.  704.  Guardians  of  Amesbury  v.  Justices  of  Wilts, 
10  Q.  E.  D.480.  Parkyns  v.  Preist,  7  Q.  B.  D.  313.  Corpora- 
tion of  Pochdale  v.  Justices  of  Lancashire,  0  Q.  B.  D.  525;  8  Q. 
B.  D.  12;  8  App.  Cases,  494.  Justices  of  West  Eiding  of  York. 
v.  The  Queen,  8  App.  Cases,  781.  Wallington  v.  Hoskins,  6  Q. 
B.  D.  200.  Pickering  Lythe  East  Highway  Board  v.  Barry,  8  Q. 
B.  D.  59.  The  Queen  v.  Ellis,  8  Q.  B.  D.  466.  Alresford  Rural 
Sanitary  Authority  i>.  Seott,  7  Q.  B.  D.,  210.  Ramsden  v.  Yeates, 
6  Q.  B.  D.  583.  44  &  4.5  Vict,  c.  27,  repealing  5  &  6  Will.  IV.  c. 
50,  s.  30. 

The  Queen  v.  Thomas,  11  Q.  B.  D.  282.  Oxenhope  District  other  cases. 
Local  Board  v.  Bradford  (Mayor),  47  L.  T.  344;  31  W.  R.  322;  47 
J.  P.  21,  D.  Dyson  r.  Grutland  Local  Board,  48  L.  T.  636;  41  J. 
P.  552,  D.  Murett  v.  Bridges,  47  J.  P.  775,  D.  Burton  v.  Salford 
Corporation,  11  Q.  B.  D.  286;  52  L.  J..  Q.  B,  668;  49  L.  T.  43; 
31  W.  R.  815;  47  J.  P.  614,  Cave,  J.  Reg.  v.  Thomas,  11  Q.  B. 
D.  282;  52  L.  J.,  Q.  B.  671;  47  J.  P.  792,  D.  Newton  Improve- 
ment Commissioners  v.  Justices  of  Lancashire,  13  Q.  B.  D.  623 ; 
48  J.  P.  406,  D.,  affirmed  54  L.  J.,  M.  C.  1— C.  A.  Over-Darwen 
(Mayor)  v.  Lancaster  (Justices),  13  Q.  B.  D.  497;  53  L.  J.,  M.  C. 
198;  51  L.  T.,  630;  48  J.  P.  437,  D.  Affirmed  in  C.  A.,  W.  N., 
18S4,  233.  Middlesborough  Overseers  v.  Yorkshire  (N.  R.)  Jus- 
tices, 12  Q.  B.  D.  239  ;  32  W.  R.  671,  C.  A.  Reg.  v.  Cheshire 
Justices,  50  L.  T.  483;  48  J.  P.  262,  D.  United  Land  Co.  v.  Tot- 
tenham Board  of  Health,  13  Q.  B.  D.  640;  53  L.  J.,  M.  C.  136; 

(z)    Austerberry  v.    Oldham     P.  532,  C.  A. 
Corporation,  29  Ch.  D.  750,   53         (a)  Reg.  v.  Chittenden,  49  J. 
L.  T.  543,  33  AY.  R.  807,   49  J.     P.  503,  Hawkins,  J. 


:;s]  HIGHWAYS. 

32  W.  R.  798,  D.  Reg.  r.  Dover  (Recorder),  32  W.  R.  876,  D. 
Rotherham  (Mayor)  v.  Fullerton,  50  L.  T.  364,  D.  Phelips  v. 
Hadham  District  Hoard,  1  C.  &  E.  67.  Coleridge,  C.J. ;  llling- 
worth  v.  Bulmer  East  Highway  Board,  53  L.  J.,  M.  C.  60;  32  W. 
R.  450,  C.  A.  47  &  48  Vict.,  c.  52,  certain  turnpike  Acts  are  con- 
tinued, and  certain  others  repealed.  Loughborough  Highway 
Board  v.  Curzon,  16  Q.  B.  D.  565. 


Contracts  made  Abroad,  &c. 


[146.]  FABRIG-AS  v.  MOSTYN. 

[COWP.  161   (1775).] 

In  1770  the  Governor  of  Minorca  was  a  gentleman 
named  Mostyn,  who  apparently  was  of  opinion  that  he 
was  entitled  to  play  the  part  of  an  absolute  and  irre- 
sponsible despot  on  his  small  stage.  One  of  his  sub- 
jects, however,  a  Mr.  Fabrigas,  did  not  coincide  with 
him  in  this  view,  and  he  rendered  himself  so  obnoxious 
that  the  governor,  after  keeping  him  imprisoned  for  a 
week,  banished  him  to  Spain. 

It  was  for  this  arbitrary  treatment  that  Fabrigas  now 
brought  an  action  at  Westminster.  Mostyn  objected 
that,  as  the  alleged  trespass  and  false  imprisonment 
had  taken  place  in  Minorca,  the  action  could  not  be 
brought  in  England.  But  it  was  held  that,  as  the  cause 
of  action  was  of  a  transitory  and  not  a  local  nature, 
it  could.  And  a  British  jury  gave  Fabrigas  £3000 
damages. 

Local  and  Actions  were  formerly  divided  into  local  and  transitory:  local, 

transitory.  such  as  could  be  tried  only  in  the  county  in  which  the  cause  of 
action  arose  {e.g.,  an  action  of  trespass  to  land),  transitory,  such 
as  could  be  tried  wherever  the  plaintiff  chose  {e.g.,  an  action 
for  an  assault).  But,  through  a  provision  of  the  Judicature  Act, 
which  abolishes  local  venue  and  allows  the  plaintiff,  subject  to  its 


CONTRACTS    MADE    ABROAD,    ETC.  385 

being  changed  by  a  judge,  to  name  any  county  he  pleases  for  the 
place  of  trial,  the  case  has  lost  its  old  importance,  and  governer 
Mostyn  and  his  doings  are  chiefly  of  antiquarian  interest. 

It  may  be  still,  however  taken  to  "lead"  as  to  the  law  relating  to  Contracts 
contracts  entered  into  abroad  and  sought  to  be  enforced  in  Eng-  made  abroad, 
land.  Such  contracts  arc  primarily  to  be  expounded  according  to 
the  law  of  the  place  where  made, — the  lex  loci  contractus,  as  it  is 
called.  For  example,  if  by  the  French  law  (b)  the  property  in  a 
bill  of  exchange  payable  to  order  is  not  passed  without  a  special 
indorsement,  the  holder  of  a  bill  drawn  in  France  apd  there  in- 
dorsed to  him  in  blank  cannot  sue  on  it  here,  although  in  the  case 
of  an  English  bill  a  blank  indorsement  would  have  sufficed.  But 
this  rule  admits  of  an  exception  in  the  ease  where  the  parties  in- 
tended the  contract  to  be  executed  in  a  country  other  than  that 
in  which  it  was  entered  into.  Contracts  which  are  illegal  accord- 
ing to  English  law,  though  legal  according  to  the  law  of  the 
country  where  made,  cannot  be  enforced  inEngland  {<■).  ''When 
a  court  of  justice  in  one  country  is  called  onto  enforce  a  con- 
tract entered  into  in  another  country,  the  question  is  not  only 
whether  or  not  the  contract  is  valid  according  to  the  law  of  the 
country  in  which  it  is  entered  into,  but  whether  or  not  it  is  con- 
sistent with  the  law  and  policy  of  the  country  in  which  it  is  to 
be  enforced  ;  and  if  it  is  opposed  to  those  laws  and  that  policy,  the 
court  cannot  be  called  on  to  enforce*it  ",  (d).  Thus,  the  rule  that 
a  contract  in  restraint  of  trade  is  void,  unless  confined  within 
what  is  reasonably  necessary  for  the  protection  of  the  contrac- 
tee,  is  a  rule  applicable  to  contracts  made  abroad  and  between 
aliens  (e).  And  although  a  contract  is  to  be  expounded  accord- 
ing to  the  law  of  the  place  where  made,  proceedings  to  enforce  it 
are  governed  by  the  law  of  the  place  where  the  action  is  brought, — 
the  lex  loci  fori.  For  example,  if  an  agreement  be  one  of  that 
class  which  the  4th  section  of  the  Statute  of  Frauds  requires  to 
be  in  writing,  a  verbal  agreement  made  in  a  foreign  country  where 
it  would  have  been  perfectly  valid  cannot  be  enforced  in  England 
(/).  Similarly,  an  action  on  a  contract  entered  into  in  Scotland, 
and  which  might  by  the  laws  of  that  country  have  been  enforced 
within  forty  years,  has  been  held  to  be  barred  by  the  English 
Statute  of  Limitations  (g). 

By  the  law  of  Jersey,  a  husband  is  still  liable  for  the  ante-nup- 
tial debts  of  his  wife.     In  England,  if  the  marriage  has  taken 

(6)  Trimbey?;.Vignier,l  Bing.  v.  Hope.  8  D.  M.  &  G.  743. 
N.C.  151  ;  Bradlaughr.  DeRin,         (e)  Rousillon  v.  Rousillon,  L. 

L.  R.  5  C.P.  473  ;  and  see  Home  J.  49  Ch.  338. 
v.  Rouquette,  L.R.  3  Q.B.D.514.         (  f)  Leroux  v.  Brown,  12  C. 

(c) .Santos  v.  Illidge,  8  C.  B,,  B.  801. 
N.  S.,  874  (g)  British  Linen  Co.  t'.Drum- 

(d)  Per  Turner,  L.  J.,  in  Hope  moiid,  10  B.  &  C.  903 


:;m; 


CONTRACTS    MADE    ABROAD,    ETC. 


French 
"prodigal 


place  since  July  30,  1874,  he  is  liahle  only  to  the  extent  of  cer- 
tain specified  assets.  A  Jersey  girl  contracted  debts  in  Jersey, 
and  then  came  to  England,  and,  after  July  30,  1874,  got  married. 
The  lady's  Jersey  creditor  brought  an  action  against  the  husband, 
urging  that  the  lex  loci  contractus  ought  to  prevail,  and  that  the 
husband  was  Liable.  But  it  was  held  that  the  husband  was  not 
liable,  as,  the  marriage  having  taken  place  in  England,  the  Jer- 
sey law  did  not  apply  (h). 

It  maybe  observed  that' when  a  contract  is  entered  into  by 
letter  between  two  persons  living  in  different  countries,  the  place 
where  the  contract  is  considered  to  have  been  made,  so  as  to  de- 
termine the  lex  loci  contractus,  is  the  place  -where  the  final  assent 
has  been  given  by  the  one  party  to  an  offer  made  by  the  other. 

The  courts  of  this  country  will  not  recognise  a  state  of  disabil- 
ity which  is  unknown  to  our  laws.     They  will  not,  for  instance, 
can  sue  here,  take  notice  of  a  personal  disqualification  caused  by  a  change  of 
status,  not  arising  from  the  law  of  nature,  but  from  the  principles 
of  the  customary  or  positive  law  of  a  foreign  country  (/). 

The  validity  of  a  marriage  .contracted  in  England,  though  the 
domicile  of  one  of  the  parties  may  be  foreign  is  decided  according 
to  the  law  of  England  ( k) ;  but,  it  has  been  decided  that  the  ques- 
tion of  divorce  is  not  an  incident  of  the  marriage  contract  to  be  gov- 
erned by  the  lex  loci  contractus.  The  power  of  dissolving  the  mar- 
riage tie  is  an  incident  of  status  to  be  regulated  by  the  law  of  the 
domicile  of  the  parties — that  is,  of  the  husband,  for  immediately 
upon  marriage  the  wife's  domicile  becomes  that  of  her  husband. 
Thus  (/),  an  English  court  will  recognise  as  valid  the  decree  of  a 
Scotch  court  dissolving  the  marriage  of  a  domiciled  Scotchman  and 
an  Englishwoman,  although  the  marriage  was  solemnized  in  Eng- 
land and  was  dissolved  upon  a  ground  for  which  by  English  law 
no  divorce  could  have  been  granted. 

As  to  torts  committed  abroad,  an  action  lies  in  England,  pro- 
vided that  the  tort  is  actionable  both  by  our  law  and  by  the  law 
of  the  country  where  the  tort  was  committed.  The  case  of  Phillips 
v.  Eyre  (m)  shows  how  necessary  it  is  that  both  of  these  condi- 
tions should  be  fulfilled.  It  was  an  action  for  assault  and  false 
imprisonment  againt  the  ex-governer  of  Jamaica,  the  trespass 
complained  of  having  been  committed  during  a  rebellion  in  that 
island.  The  defendant  successfully  relied  on  an  Act  of  Indem- 
nity which  the  Jamaica  Legislature  had  passed,  and  said  that  leg- 


Torts  com- 
mitted 
abroad. 


(fc)DeGreuchy  v.  Wills,  L.R. 
4  C.  P.  D.  362. 

(i)  Worms  v.  De  Valdor,  L.J. 
49  Ch.  261. 

(k)  Sottomaver  v.  De  Barros, 
L.  R.  5  P.  D.  9 1. 


(/)  Harvey  v.  Farnie,  L.  P.  6 
P.D.  35.Affirmedin  8  A  pp.  Cases 
43;  52  L.J. P.  33:  48L.T.273;  31 
W.  R.  433;  47  J.  P.  308;  H.  L. 

(m)  L.  R.  0  Q.  B.  1. 


CONTRACTS    MADE    ABROAD,    ETC.  387 

islation,  though  ex  post  facto,  cured  the  wrongfulness  of  his  acts, 
and  prevented  the  plaintiff  from  recovering.  The  case  of  The 
Halley  (m)  is  another  authority  on  the  subject.  By  the  negli- 
gence of  a  pilot,  compulsorily  taken  on  hoard,  The  Halley,  a 
British  steamer  in  Belgian  waters,  ran  down  a  Norwegian  vessel, 
The  Napoleon.  By  Belgian  law  the  Britisher  was  liable,  but  by 
our  law  the  fact  that  the  pilot  was  on  board,  and  that  the  collis- 
ion was  due  to  his  negligence,  exempted  her.  It  was  held  that, 
under  those  circumstances,  no  action  lay  against  her  in  Eng- 
land. "It  is,"  the  court  said,  "in  their  lordships'  opinion, 
alike  contrary  to  principle  and  to  authority,  to  hold  that  an  Eng- 
lish court  of  justice  will  enforce  a  foreign  municipal  law,  and 
will  give  a  remedy  in  the  shape  of  damages,  in  respect  of  an  act 
•which,  according  to  its  own  principles,  imposes  no  liability  on 
the  person  from  whom  the  damages  are  claimed." 

But,  on  the  other  hand,  it  is  no  defence  to  an  action  for  a  tort 
committed  in  a  foreign  country  that,  by  the  laws  of  that  country 
no  action  lies  till  the  defendant  has  been  -dealt  with  criminally, 
for  that  is  a  mere  matter  of  procedure  (o). 

The  courts  do  not  take  judicial  notice  of  the  laws  of  foreign  Foreign  law, 
states.  Such  laws  are  proved  by  the  oral  evidence  of  persons  now  proved, 
having  a  practical  acquaintance  with  them,  and  whether  any 
particular  person  tendered  as  a  witness  is  duly  competent  is  a 
question  for  the  court.  In  a  case  (p)  in  which  the  question  was, 
whether  a  London  hotel  keeper,  but  a  native  of  Belgium,  and 
who  had  been  a  mei-chant  in  Brussels,  was  competent  to  prove 
the  law  of  Belgium  as  to  the  presentment  of  promissory  notes, 
Talfourd,  J.,  said  :  "Foreign  law  is  matter  of  fact:  any  person 
who  can  satisfy  the  court  that  he  has  the  means  of  knowing  it  is 
an  admissible  witness  to  prove  it.  One  who  has  been  long  in  the 
habit  of  attending  as  a  special  juryman  in  the  city  of  London 
would  no  doubt  be  well  qualified  to  speak  as  to  the  law  of  Eng- 
land on  many  subjects  connected  with  commerce.  As  to  the 
admissibility  of  this  person's  evidence,  I  think  there  can  be  no 
doubt,  whatever  may  have  been  the  weight  it  was  entitled  to." 

The  judgment  of  a  foreign  court  in  any  proceeding  in  personam, 
if  final  and  conclusive  where  made,  and  if  not  plainly  contrary 
to  natural  justice,  is  (q)  final  and  conclusive  here. 

The  owner  of    cargo   who  ships  it  on  board  a  foreign  vessel  Law  of  the 
ships  it  to  be  dealt  witii  by  the  master  according  to  the  law  of  Flag, 
the  flag,  that  is  the  law  of  the  country  to  which  the  vessel  be- 
longs (r). 

(n)  L.  R.  2  P.  C.  193.  CI.  &  Fin.  368. 

(o)  Scott  V.Seymour,  1  H  &         (r)  The"Gaetano  and  Maria," 

C.  219.  7  P.  D.  1.  137  ;  51   L.  J.  P.  67; 

(p)  Vander  Donckt  v.  Thel-  46  L.  T.  835  ;  30  W.  R.  766  ;  4 

lusson,  8  C.  B.  812.  Asp.  M.  C.  535,  C.  A. 

(3)    Kichardo   v.  Garcias,  12 


3SS 


CONTRACTS    MADE    ABROAD,    ETC. 


Unsealed 

lease. 


Negligence. 


Colonial  law 


Proof  of 
Persian  law. 


Legitimacy. 


By  Scotch  law  a  instrument  under  seal  is  not  necessary  for  the 
conveyance  of  a  sporting  right,  and  therefore  the  stipulations  of 
an  unsealed  lease  made  between  Englishmen  in  England  of  a 
sporting  right  over  land  in  Scotland  may  be  enforced  by  action 
in  the  English  courts,  as  the  provision  of  the  law  of  England  that 
an  instrument  under  seal  is  necessary  for  the  conveyance  of  a 
right  to  an  incorporeal  hereditament  is  not  part  ol  the  lex  fori  (s). 

In  an  action  in  personam,  brought  by  the  owners  of  a  British 
vessel  against  the  owners  of  a  Spanish  vessel  to  recover  damages 
caused  to  the  British  vessel  by  collision  with  the  Spanish  vessel 
on  the  high  seas,  the  defendants  pleaded  that  they  were  Spanish 
subjects,  and  that  if  there  was  any  negligence  on  the  part  of  those 
in  charge  of  the  Spanish  vessel,  it  was  negligence  for  which  the 
master  and  crew  alone,  and  not  the  defendants,  were  liable  ac- 
cording to  the  law  of  Spain.  It  was  decided  that  such  a  defence 
was  bad  upon  demurrer  (I). 

In  Bateman  v.  Service  it  was  held  that  the  Western  Australian 
Joint  Stock  Companies  Ordinance  Act,  18.18,  does  not  apply  to 
foreign  corporations  or  to  companies  incorporated  out  of  Western 
Australia,  and  properly  asd  lawfully  carrying  on  business  as 
such.  Consequently,  a  limited  Company  incorporated  elsewhere, 
not  having  complied  with  its  provisions,  can  nevertheless  carry 
on  business  and  make  contracts  in  Western  Australia  by  its 
agent  without  its  members  being  liable  individually  for  its  debts 
and  engagements,  and  that  a  company  duly  registered  and  incor- 
porated in  Victoria  could  not  be  again  registered  as  a  company 
in  Western  Australia  (u). 

D.  M.  K.,  a  Persian  subject,  was  by  a  decree  of  a  Persian  court 
declared  entitled  to  certain  property  in  this  country.  The  decree, 
though  founded  partly  upon  a  will,  made  no  mention  of  it,  and  the 
court  which  had  custody  of  the  will  refused  to  give  a  copy  of  it. 
The  Court  of  Probate  granted  letters  of  administration  limited 
to  the  property  mentioned  in  a  duly  authenticated  copy  of  the 
decree.  The  court  allowed  the  law  applicable  to  the  case  to  be 
proved  by  a  Persian  Ambassador  (x). 

A  bequest  of  personalty  in  an  English  will  to  the  children  of 
a  foreigner  must  be  construed  to  mean  to  his  legitimate  children, 
and  by  international  law  as  recognized  in  this  country ,  those 
children  are  legitimate  whose  legitimacy  is  established  by  the 
law  of  their  father's  domicil  (y). 


(s)  Adams  v.  Clutterbuck,  10 
Q.  B.  D.  403. 

(/)  The  Leon,  6  P.  D.  148. 

(w)  Bateman  v.  Service,  6 
A  pp.  Cases,  386  ;  Buckely  v. 
Schutz,  L.  R.  3  P.  C.  764. 


(x)  In  the  goods  of  Dost  Aly 
Khan,  6  P.  D.  6. 

(y)  In  re  Andros,  Andros  v. 
Andros,  24  Ch.  D.  637  ;  52  L.  J. 
Ch.  793  ;  49  L.  T.  163  ;  32  W. 
R.  30  ;  Kay,  J. 


CONTRACTS  MADE  ABROAD.  ETC.  389 

A  testator,  who  was  domiciled  and  resident  in  Scotland  and  Appearance 

whose  will  was  in  Scotch  form,  appointed  six  executors,  two  of  without 
whom  were  resident  in  England  :  another,  being  a  Scotch  mem-  protest. 
ber  of  Parliament,  resided  in  England  during  the  session  ;  and 
the  other  three  resided  in  Scotland.  The  value  of  the  estate  was 
about  6500,000,  and  it  was  all  in  Scotland  with  the  exception  of 
about  £25,000,  which  was  in  England.  The  executors  proved 
the  will  in  Scotland  and  constituted  themselves  legal  personal 
representatives  iu  England,  and  removed  all  the  English  person- 
alty to  Scotland.  An  action  was  then  commenced  in  England 
by  a  plaint  ill' resident  there,  who  was  entitled  to  a  share  of  a 
legacy,  and  also  of  the  residue,  for  the  administration  of  the 
estate.  Three  of  the  trustees  were  served  in  England  and  the 
other  three  in  Scotland,  and  they  entered  an  appearance  without 
any  protest  and  took  no  steps  to  discharge  the  order.  No  action 
was  pending  in  Scotland  for  the  administration  of  the  estate 
there.  It  was  decided  that  the  court  at  the  trial  has  no  discre- 
tion and  that  the  plaintiff  was  entitled  to  the  ordinary  decree 
for  the  administration  of  the  wholeestate.  But  if  the  executors 
had  appeared  conditionally  and  applied  to  discharge  the  order  for 
service  in  Scotland,  the  court  would  have  considered  the  <|iies- 
tion  as  to  whether  it  was  convenient  to  have  the  estate  adminis- 
tered in  England  (.-). 

Foreign  personal  assets  are  governed  by  the  lex  domicilii  of  the  Foreign  per- 
deceased  owner  for  the  purpose  of  succession  and  enjoyment,  sonal  assets. 

For  the  purpose  of  legal  representation,  of  collection,  and  of 
administration  as  distinguished  from  distribution  among  the  suc- 
cessors they  are  governed  by  the  lex  loci  (a). 

De  Fogassieras  v.  Duport,  11  L.  R.,  Ir.  123.,  P.  D.  Bloxam  v.  Other  cases. 
Favre,  8  P.  D.  101  ;  52  L.  J.  P.  42  ;  31  W.  R.  610  ;  47  J.  P.  377, 
D.  Hawthorne,  in  re,  Graham  v.  Massey,  23  Ch.  D.  743  ;  52  L. 
J.  Ch.  750  ;  48  L.  T..  701  ;  :;•-'  W.  R.  147,  Kay,  J.  In  re  Tootal's 
Trusts,  23  Ch.  D.  532  ;  52  L.  J.  Ch.  664  ;  48  L.  T.  81G  ;  31  W. 
R.  653  ;  Chitty,  J.  Hyman  v.  Helm,  21  Ch.  D.  531  ;  49  L.  T. 
376  ;  32  W.  R.  258,  C.  A.  Heara  v.  Glanville,48  L.  T.  356,Pear- 
son.  J.  Chartered  Mercantile  Bank  of  India.  London,  and  China 
v.  Netherlands  India  Steam  Navigation  Co.,  10  Q.  B.  D.  5:21  ;  52 
L.  J.,  Q.  B.  220  ;  48  L.  T.  546  ;  31  W.  R.  445 ;  47  J.  P.  260,  C. 
A.  Jacobs  r.  Credit  Lyonnais,  4«J  L.  T.  39,  D.  Abouloff  v.  Op- 
penheimer,  10  Q.  B.  D.,  295  :  52  L.  J.,  Q.  B.  6  ;  47  L.  T.  325  ; 
31  W.  R.  57.  C.  A.,  affirming  3D  W.  R.  429,  D.  A  Foreign 
Judgment  is  a  debt  tinder  Order  XrV.,  Greer  v.  Pole.  5  Q.  B.  D. 

(z)    Orr-Ewing,    In   re,    Orr-  Cases,  82;  52  L.  J.  P.  C.  10;  48 

Ewingr.  Orr-Ewing,  22  Ch.  D.  L.  T.  441;  31  W    11.   045,  P.  C; 

456:  52  L.    J.  Ch.    529;  48  L.  and  see  Orr-Ewing, 9  App.  Cases, 

T.   555  ;  31   W.   R.   464.   C.   A.  34;  53  L.  J.  Ch.  435;  50  L.  T. 

Affirmed,  W.  N.  1883,  200.  461;  32  W.  R.  573. 

(a)  Reg.  v.  Blackwood,  8  App. 


390  CONTRACTS    MADE    ABROAD,    ETC. 

272.  Musgrave  v.  Pulido,  5  App.  Ca.  102.  Strousberg  v.  Repub- 
lic of  Costa  Rica,  44  L.  T.,  X.  S.  199.  Alliance  Bank  of  Simla 
v.  Carey,  5  C.  P.  D.  429.  Dawkins  v.  Sinionetti,  44  L.  T.,N.S., 
266.  De  Montbrun  v.  Heisch,  L.  J.,  N.  S.,  Feb.  3rd,  1883.  De 
Qui  r.  Stone,  2:2  Ch.  D.  243. 
Other  cases.  Bradford  v.  Young,  26  Ch.  D.  656;  54  L.  J.,  Ch.  96;  50  L.  T. 
707,  32  W.  R.  'JUL  Pearson,  J.  Cunningham,  Ex  parte,  Mitchell, 
In  re,  13  Q.  B.  D.  418;  53  L.  J.,  Ch.  1067;  51  L.  T.  447;  33  W. 
R.  22;  1  M.  B.  R.  137,  C.  A.  In  re  Matheson,  27  Ch.  D.  225; 
51  L.  T.  Ill;  32  W.  R.  846,  Kay,  J.  Hernando,  In  re,  Hernando 
v.  Lawtell,  27  Ch.  D.  284;  53  L.  J.  Ch.  865.  51  L.  T.  117,  Pear- 
son, J.  Grant  v.  Easton,  13  Q.  B.  D.  302;  53  L.  J.,  Q.  B.  68;  49 
L.  T.  645;  32  W.  R.  239,  C.  A.  In  re  Kloebe,  Hannreuther  v. 
Geiselbrecht,  28  Ch.  D.  175;  54  L.  J.,  Ch.  297;  52  L.  T.  19;  33 
W.  R.  391,  Pearson  J.  Patience,  In  re,  Patience  v.  Main  29  Ch. 
D.  976;  54  L.  J.,  Ch.  897;  52  L.  T.  687;  33  W.  R.  501,  Chitty  J. 
The  Lauderdale  Peerage,  10  App.  Cases,  692;  H.  L.,  Sc.  Mac- 
reight,  In  re,  Paxton  v.  Macreight,  30  Ch.  D.  165;  55  L.  J.  Ch. 
18;  53  L.  T.  146;  33  W.  R.  388,  Pearson  J.  Marseilles  Exten- 
sion Railway  and  Land  Company,  Smallpage  and  Brandon,  hire, 
30  Ch.  D.  598,  Pearson,  J.  Voinet  v.  Barrett,  55  L.  J.,  Q.  B.  39; 
34  W.  R.  161,  C.  A.,  affirming  on  this  point  54  L.  J.,  Q.  B.  521; 
1  C.  &  E.  554,  Wills,  J. 


Husband  and  Wife. 


[147.]  WENMAN  v.  ASH. 

[13  C.  B.  836  (1853.)] 

Mr.  Ash,  an  old  gentleman  of  eighty-two,  wrote  a  let- 
ter to  Mrs.  "Wenrnan,  a  lady  with  whom  he  had  lately 
been  lodging,  and  said  that,  though  he  entertained 
the  profoundest  respect  for  herself,  her  husband  was 
an  unmitigated  scoundrel,  and  had  stolen  some  receipts 
out  of  his  portmanteau.  Mrs.  AVenman  showed  the 
letter  to  her  husband,  and  he  brought  an  action  for 
libel.     For  the  defence  it  was  contended  that  there  was 


HUSBAND    AND    WIFE.  391 

no  publication  to  a  third  person,  husband  and  wife  be- 
ing one  flesh.  It  was  decided,  however,  that  there 
was,  for  though  it  is  true  that  for  some  purposes  hus- 
band and  wife  are  one  person  yet  for  others  they  are 
not. 


The  old  common  doctrine  was  that  husband  and  wife  (baron  Common  law 
and  feme)  were  one  person,  and  that  one  person  the  husband;  doctrine  as  to 
and  the  consequences  of  that  doctrine  have  been  until  very  re-  husband  and 
cently  of  extreme  importance.     A  married  woman,  for  instance,  v>1    " 
could  not  as  a  general  rule  contract  or  hold  property;  she  could 
not  sue  alone;  she  was  not  capable  of  taking  a  gift  from  her  hus- 
band;  and,  even  at  the  present  day,  she  is  not  responsible  for 
certain  criminal  offences  if  committed  in  her  husband's  presence, 
nor  can  she,  except  under  certain  special  circumstances,  be  a  wit- 
ness in  a  criminal  trial   for  or  against  him.      Wcnman  v.  Ash,  Limitation  to 
however,  is  an  authority  to  show  that  there  is  some  limitation  to  be  placed  on 
be  placed  even  on  the  old  common  law  rule.  "*e  common 

Moreover,  an  Act  (b)  passed  for  the  purpose  of  consolidating 
and  amending  the  laAv  relating  to  the  property  of  married  wo-  Married 
men  has  introduced  the  most  extensive  and  sweeping  changes,   *'  omen  s 

l"*F()T)Crt  V 

placing  the  wife  in  very  much  the  same  position  as  the  husband   .     '  jqXj, 
so  far  as  regards  the  acquisition  and  tenure  of  property.     The 
date  of  the  commencement  of  the  Act  is  the  1st  January,  1883, 
and  its  chief  provisions  may  be  thus  summarised: — 

A  married  woman  may  acquire  and  dispose  of  any  property  as  Principal 
her  separate  property  in  the  same  manner  r.s  if  she  were  a  feme  provisions. 
sole;  she  is,  too,  liable  and  has  rights  in  contract  or  in  tort  in  re- 
spect of  the  same  precisely  as  though  she  were  unmarried,  and  if 
she  carries  on  a  trade  separately  from  her  husband  she  is  subject 
to  the  bankruptcy  laws.     As  to  what  constitutes  this  separate  Meaning  of 
property,  it  is  provided  that  a  woman  married  after  the  Act  is  to      separate 
have  all  such  property  as  belonged  to  her  at  the  time  of  marriage;  "    i      J- 
whilst,  whether  married  before  or  after  the  Act,  she  is  to  hold  as 
her  separate  property  all  such   possessions  as  may  now  he  ac- 
quired by  or  devolve  upon  her  during  coverture  (c),  "including 
any  wages,  earnings,  money,  and  property  gained  or  acqinred  by 
her  in  any  employment,  trade,  or  occupation  in  which  she  is 
engaged,  or  which  she  carries  on  separately  from  her  husband,  or 
by  the  exercise  of  any  literary,  artistic,  or  scientific  skill." 

In  a  case  (d)  turning  on  the  construction  of  similar  words  in  an  Lovell  v. 
Act  now  repealed,  where  a  drunken  husband's  creditors  had  Newton, 
seized  certain  stock-in-trade  which  an  industrious  wife  said  was 

(b)   Married  Women's  Prop-         (c)  Sec.  2. 
ertv   Act,  1882   (45  &  46  Vict,         (ri)  Lovell    v.    Newton,   4  C. 
c.  75).  P.  D.  7. 


392  HUSBAND    AND    WIFE. 

hers,  Denman,  J.,  observed:  "Looking  at  the  substance  and  in- 
tention of  the  Act,  which  was  to  protect  the  fruits  of  the  talent 
and  industry  of  married  women  from  being  made  liable  for  the 
debts  of  their  husbands,  and  having  a  decision  of  the  Court  of 
Appeal  that  stock-in-trade  is  included  within  the  term  '  earn- 
ings,' I  think  we  are  fully  justified,  acting  as  a  jury,  in  holding 
that  Mrs.  Newton  was  carrying  on  this  business  separately  from 
her  husband,  so  as  to  protect  the  goods  in  question  from  being 
seized  for  his  debt.  I  wish  it  to  be  understood  that  the  only  law 
we  decide  is  that  the  mere  fact  of  the  husband  living  in  the 
house  at  the  time  the  business  is  so  being  carried  on  does  not 
deprive  the  wife  of  the  protection  afforded  her  by  the  Act." 
Married  So  far  as  the  protection  and  security  of  her  own  separate  prop- 

woman  same  erty  are  concerned,  a  married  woman  has  now  the  same  civil 
civil  reme-      remedies  as  though  the  property  belonged  to  her  as  a  feme  sole; 
,     lh*  but,  except  in  actions  so  arising,  no  husband  or  wife  is  entitled 

to  sue  the  other  for  a  tort  (e). 

Criminal  So,  t°°>  *ne  wife  now  possesses  all  remedies  and  redress  by  way 

remedies  and  of  criminal  proceedings  for  the  protection  of  her  separate  prop- 
liability  ol       erty;  but  it  is  provided  "that  no  criminal  proceeding  shall  be 

taken  by  any  wife  against  her  husband  by  virtue  of  this  Act 
woman.  J       J  &  J 

while  they  are  living  together,  as  to  or  concerning  any  property 

claimed  by  her,  nor  while  they  are  living  apart,  as  to  or  concern- 
ing any  act  done  by  the  husband  while  they  were  living  together, 
concerning  property  claimed  by  the  wife,  unless  such  property 
shall  have  been  wrongfully  taken  by  the  husband  when  leaving 
or  deserting,  or  about  to  leave  or  desert,  his  wife"  (/).  There 
Is,  too,  an  important  provision  extending  the  criminal  liability 
of  the  wife:  "A  wife  doing  any  act  with  respect  to  any  property 
of  her  husband,  which,  if  done  by  the  husband  with  respect  to 
the  property  of  the  wife,  would  make  the  husband  liable  to  crim- 
inal proceedings  by  the  wife  under  this  Act,  shall  in  like  man- 
ner be  liable  to  criminal  proceedings  by  her  husband  "  [g). 
Provisions  as  The  statute,  moreover,  contains  provisions  as  to  the  wife's  ante- 
to  ante-nup-  nuptial  debts  and  liabilities.  They  are  too  elaborate  to  be  here 
tial  debts  and  explained  in  detail,  but  they  amount  to  this;  viz.,  that  the  sepa- 
rate  estate  of  the  wife  is  primarily  liable  to  discharge  such  debts 
and  liabilities,  whilst  a  secondary  liability  attaches  to  such  prop- 
erty as  the  husband  has  acquired  through  or  from  his  wife. 
This,  however,  is  not  to  affect  the  position  of  persons  married  be- 
fore the  commencement  of  the  Act,  except  as  to  any  separate 
property  to  which  the  wife  may  become  entitled  by  virtue  of  the 
Act  (h). 

(e)  Sec.  12.  the  position  of  parties  married 

(/)  Sec.  12.  before  the  Act,  see  33  &  34  Vict. 

(ff)  Sec.  lfi.    •  c.  93,  s.  12,  and  37  &  38  Vict. 

(h)  Sees.   13  and  14.  As  to    c.  50. 


HUSBAND    AND    WIFE.  393 

It  may  be  added  that  there  is  provision  made  for  the  settle-  Summary 

merit  of  disputes  arising  between  husband  and  wife  as  to  property  j  urisdiction 

in  a  summary  manner  before  a  judge  of  the  High  Court  or  of  the  in  disputes. 

District  County  Court  (i);  and  a  woman  with  separate  estate  is  Maintenance 

now  liable  to  the  parish  fjr  the  maintenance  of  her  husband  and  ?    PauPer 

hushandor 
children  (A).  child. 

It  is  doubtful  whether  adultery  by  a  husband,  which  has  been  Adultery 
condoned  by  the  wife  is  a  bar  to  his  obtaining  a  dissolution  on  condoned, 
the  ground  of  subsequent  adultery  of  the  wife  (/). 

A  judicial  separation  was  decreed  in  a  case  where  the  wife  had  Desertion  by 
deserted  the  husband  for  two  years  and  upwards  without  rea-  wife, 
sonable  cause  (m). 

In  Blandford  v.  Blandford  the  husband  having  been  guilty  of  Desertion 
desertion  and  adultery  the  wife  forgave  him,  and  they  returned  revived  by 
to  cohabitation.     He  subsequently  committed  adultery.     It  was  8Ubsequent 
held  by  the  court  that  the  subsequent  adultery  revived  the  de- 
sertion  and  that  the  wife  was  entitled  to  a  dissolution  of  the 
marriage  (»). 

In  King  v.  Lucas,  by  a  post-nuptial  settlement  made  in  pur-  Wife's  sepa- 
suance  of  ante-nuptial  articles,  certain  policies  of  insurance  on  rate  estate, 
the  life  of  the  husband  were  assigned  to  trustees  upon  trust  to 
receive  the  money  and  pay  the  income  to  the  wife  during  her 
life  for  her  separate  use,  independently  of  any  future  husband 
whom  she  might  marry.  There  was  no  restraint  upon  anticipa- 
tion. During  the  life  of  her  first  husband  the  wife  made  promis- 
sory notes  in  favour  of  the  plaintiff,  and  the  plaintiff,  the  first 
husband  being  still  alive,  brought  an  action  claiming  a  charge 
upon  the  policies.  .  The  court  held  that  the  trust  for  separate  use 
did  not  arise  till  after  the  death  of  the  husband,  and  that  as  the 
contracts  of  a  married  woman  can  only  be  enforced  against  prop- 
erty which  formed  part  of  her  separate  estate  at  the  date  of  the 
contract,  the  action  could  not  be  maintained  (o). 

Married  women  suing  as  plaintiffs  without  their  husbands  be-  Security  for 
ing  joined  are  not  liable  to  give  security  for  costs  (p).  costs. 

When  a  married  woman  shall  have  been,  or  shall  be,  deserted  paUper 
by  her  husband,  and  shall,   after  his  desertion,  reside  for  three  settlement, 
years  in  such  a  manner  as  would,  if  she  were  a  widow,  render 
her  exempt  from  removal,  she  shall  not  be  liable  to  be  removed 


(i)  Sec.  17.  216;  31  W.  R.   904,  C.  A.  ;  and 

(k)  Sees.  20  and  21.  see  Gaffer,  In   re  (1   Mac  &  G. 

(?)  Rose  v.  Rose,  8  P.  D.  98;  541),  Molyneux's  Estate,  In  re 

52  L.  J.  P.  25;  48  L.  T.  378;  31  (I.  R.  6  Eq.  411)  and  Sturgis  v. 

W.  R.  573,  C.  A.  Corp  (13  Ves.  190). 

(m)  Millar  v.  Millar,  8  P.  D.         (p)  Threlfall  v.  Wilson,  8  P. 

187 ;  32  W.  R.  95,  D.  D.  18;  48  L.  T.  238  ;  31   W.  R. 

(n)  8  P.  D.  19;  52  L.  J.  P.  17;  508  ;  47  J.  P.   279  D.;  and  see 

48  L.  T.  238;  31  W.  R.  508,  D.  Leverance  ».  Civil  Service  Sup- 
Co)  23  Ch.  D.  712 ;  49  L.  T.  ply  Association,  48  L.  T.  485. 


394 


HUSBAND    AND    WIFE. 


Maintenance, 


Poverty  ex- 
cuse for 

delay. 

Bigamy- 


Actions  ol 
married 

women. 


Non-access. 


from  the  parish  where  she  shall  he  resident  unless  her  husband 
return  to  cohabit  with  her  (q). 

A  husband  is  not  liable  to  be  ordered  under  31  &  32  Vict.,  c. 
122,  s.  33,  to  maintain  a  wife  with  whom  he  has  ceased  to  co- 
habit in  consequence  of  her  adultery  (r). 

When  poverty  was  urged  as  an  excuse  why  a  dissolution  of 
marriage  was  not  previously  sought  for,  it  was  decided  to  be  a 
reasonable  explanation  (s). 

It  was  decided  that  when  a  husband,  believing  his  wife  dead, 
married  again,  and  discovered  subsequently  that  his  wife  was 
alive,  and  guilty  of  adultery,  he  was  entitled  notwithstanding 
the  bigamy  he  had  committed,  to  a  dissolution  of  the  first  mar- 
riage (/). 

A  married  woman  married  before  1st  January,  1882,  may  bring 
and  maintain  an  action  in  her  own  name  alone  after  the  com- 
mencement of  the  Married  Women's  Property  Act,  1882,  for  torts 
committed  against  her  property  before  the  Act  came  into  opera- 
tion: and  since  its  coming  into  operation  the  previous  leave  of 
the  court  or  a  judge  is  no  longer  necessary  («)• 

A  marriage  settlement  made  in  1862  contained  an  agreement 
for  the  settlement  of  any  future  acquired  property  of  the  wife  to 
a  specified  amount  except  interests  settled  and  limited  to  her 
separate  use.  The  wife  after  the  commencement  of  the  Married 
Women's  Property  Act.  1882,  became  entitled  absolutely  to  a  be- 
quest above  the  specified  amount  without  any  limitation  as  to 
separate  use.  The  court  held  that  by  the  19th  section  of  the 
above  Act  the  marriage  settlement  was  exempted  from  the  5th 
and  other  sections:  and  that  the  bequest  to  the  wife  came  within 
the  covenant  to  settle  future  acquired  property  and  must  be 
dealt  with  as  if  the  Act  had  never  been  passed  (x). 

In  Hawes  v.  Draeger,  a  testator  bequeathed  government  annui- 
ties upon  trust  for  his  daughter  C.  for  life  and  after  her  decease 
for  her  children  equally.  C.  married  H.  G.  and  by  him  had  two 
children  at  the  time  when  H.  G.  deserted  her  and  his  family.  C. 
went  to  live  with  a  man  named  J.  H.  and  while  living  with  him 
had  five  children  the  eldest  of  whom  was  M.  who  was,  according 
to  the  evidence,  born  during  the  lifetime  of  H.  G.  M.  claimed 
a  share  of  the  fund.  The  court  held  that  considering  all  the  cir- 
cumstances from  which  non-access  between  the  husband  and  wife 


iq)  The  Queen  v.  Cookham 
Union,  9  Q.  B.  D.  522. 

(r)  Cudey  v.  Charman,  7  Q. 
B.  D.  89. 

(s)  Mason  v.  Mason,  8  P.  D. 
21;52L.  J.  P.  27;48L.  T.  290; 
31  W.  R.  361. 

(0  Frugard  v.  Frugard,  8  P. 


D.  186;  52  L.  J.  P.  100  ;  32  W. 
R.  95,  D. 

(«)  James  v.  Barraud,  49  L. 
T.  300;  31  W.  R.  786,  D. 

(.r)  Storror's  Trusts,  In  re,  24 
Ch.  D.  195  ;  52  L.  J.  Ch.  776 ; 
48  L.  T.  963,  Pearson,  J. 


HUSBAND   AND   WIFE.  395 

might  be  inferred  the  presumption  of  the  legitimacy  of  M.  wasrc- 
buttetl,  and  that  she  was  not  entitled  to  any  share  of  the  fund  (y). 

By  47  Vict.  c.  14,  husbands  and  wives  are  made  competent  wit- 
nesses in  criminal  proceedings  under  45  &  46  Vict.  c.  75. 

A  woman  being  executrix  and  residuary  legatee  married  in  Evidence. 
1880.  She  had  discharged  all  her  duties  qua  executrix  save  that 
she  had  not  obtained  payment  of  a  sum  of  money  which  fell  due 
to  her  testator's  estate  iu  September,  1870,  for  which  sum  she 
brought  an  action  in  1883.  The  court  held  that  the  wife's  title 
qua  legatee  accrued  before  the  Married  Women's  Property  Act, 
1882,  came  into  operation  and  that  the  husband  was  entitled  to 
this  money  jure  mariti  (z). 

A  husband  is  not  liable  under  the  Married  Women's  Property  Liability-  of 
Act.  1870,  Amendment  Act,  1874,  after  his  wife's  death  for  her  husband, 
debts  contracted  before  the  marriage  («). 

The  Married  Women's  Property  Act,   1874,   s.   5,  enacts  that  "Any  subse- 
when  a  husband  after  marriage  has  a  judgment  bond  fide,  recov-  quent 

•  i(*f  l  Oil 

ered  against  him  in  any  action  brought  under  the  Act  to  recover 
a  debt  of  the  wife  contracted  before  marriage,  "then  to  the  ex- 
tent of  such  judgment  the  husband  shall  not  in  any  subsequent 
action  be  liable."  It  was  decided  that  the  words  "any  subsequent 
action"  mean  any  action  commenced  subsequent  to  the  time  of 
bringing  the  action  in  which  judgment  has  been  recovered  and 
not  merely  any  action  commenced  subsequently  to  the  recovery 
of  the  judgment  (b). 

Under  the  Married  WTomen's  Property  Act,  1882,  the  old  rule  Gift  to  hus- 
of  law  that  husband  and  wife  were  for  most  purposes  one  person  band,  w^l'e, 

so  that  under  a  gift  by  will  to  a  husband  and  wife  and  a  third  am      ur< 

°        J  person, 

person,  the  husband  and  wife   took  only  one  moiety,  between 

them,  the  third  person  taking  the  other  moiety,  is  no  longer  ap- 
plicable to  such  a  gift  under  a  will  that  has  come  into  operation 
since  the  commencement  of  that  Act  (c). 

A  bequest  to  a  married  woman  of  real  and  personal  property  geparate 
"for  her  absolute  use  and  benefit"  is  sufficient  to  create  a  sep-  estate, 
arate  estate  (d). 

Where  a  woman  married  when  proceedings  were  pending  be-  • 
tween  her  and  others,  which   resulted  after  her  marriage  in  a 
statutory  debt  being  created,  the  court  decided  that  her  separate 
property  was  chargeable  with  the  payment  of  such  debt  (e). 

A  charge  given  by  a  married  woman  upon  her  separate  estate    . 

(y)  Hawes  v.  Draeger,  23  Ch.  (b)  Fear  v.  Castle,  8  Q.  B.  D. 

D.  173  ;  52  L.  J.  Ch.  449  ;  48  L.  380. 

T.  518  ;  31  W.  R.  576,  Kav,  J.  (c)  In  re  March,   Mander  v. 

(z)  Edwards  v.  Edwards,'  1  C.  Harris,  24  Ch,  D.  222. 

&  E.  229,  Mathew,  J.  (d)  Negus  v.  Jones,  1  C.  &  E. 

(a)  Bell  v.  Stacker,   10  B.  Q.  52  Williams,  J, 

D.  129  ;  52  L.  J.  Q.  B.   49  ;  47  (e)  London,  Mayors.  Brooke, 

L.  T.  624  ,  31  W.  E.  183  ;  47  J.  1  C.  &  E.  169  Pollock,  B. 
P.  8,  Field,  J 


396 


HUSBAND    AND    WIFE. 


Joinder  of 

husband. 


Petty  Ses- 
sions. 


Payment  by 
husband. 


Bill  of  sale. 


is  sufficient  evidence  of  the  existence  of  separate  e?tate  to  entitle 
a  plaintiff,  with  whom  she  has  contracted,  to  an  inquiry  (/). 

A  married  woman  is  entitled  under  the  Married  Women's 
Property  Act,  1882,  s.  1.,  subs.  2,  to  bring  an  action  in  respect  of 
a  tort  committed  upon  her  during  coverture  before  the  commence- 
ment of  the  Act  without  joining  her  husband  as  plaintiff  (g). 

The  Married  Women's  Property  Act,  1882.  does  not  enable  a 
married  woman  to  bring  an  action  for  an  assault  committed  upon 
her  during  coverture  before  the  passing  of  the  Act  without  join- 
ing her  husband   (/;). 

Magistrates  at  petty  sessions  have  power  toorder  a  judicial  sep- 
aration for  an  aggravated  assault,  even  although  they  only  inflict 
the  penalty  of  fine  or  imprisonment  for  a  common  assault  (/). 

A  husband  is  entitled  to  maintain  an  action  against  his  wife  and 
to  charge  her  separate  property  for  money  lent  by  him  to  her  after 
their  marriage,  and  for  money  paid  by  him  for  her  after  their  mar- 
riage at  her  request  made  before  or  after  their  marriage  ;  but  he 
is  not  entitled,  even  since  the  Married  Women's  Property  Act, 
1882,  to  maintain  any  action  against  her  for  money  lent  to  her, 
or  money  paid  for  her  before  their  marriage  at  her  request  (k). 

Upon  a  judgment  against  a  husband  and  wife  jointly,  certain 
household  furniture  was  taken  in  execution  at  the  house  where 
they  resided.  On  an  interpleader  issue  to  try  the  title  to  such  fur- 
niture as  between  the  execution  creditors  and  claimants  it  ap- 
peared that  before  the  marriage  the  husband  had  executed  a  deed 
declaring  that  the  goods  in  question,  which  then  belonged  to  the 
wife,  should,  after  the  marriage,  continue  to  belong  to  her  for 
her  sole  and  separate  use.  The  wife  assigned  the  goods  to  the 
claimants  by  a  bill  of  sale,  made  prior  to  the  execution,  and  duly 
registered  under  the  Bills  of  Sale  Acts,  1878  and  1882,  to  which 
the  husband  was  no  party.  The  court  held  that  the  bill  of  sale 
executed  by  the  wife  was  valid  under  the  Bills  of  Sale  Acts',  and 
that  the  claimants  were  entitled  to  the  goods  as  against  the  exe- 
cution creditors  (?). 


(/)  London  Alliance  Discount 

Co.  v.  Kerr,  1  C.  &E.  5,  Cave,  J. 

(g)  Weldon  v.  Winslow,  13  Q. 

B.  I>.  784 ,  53  L.  J.  Q.  B.  528, 

C.  A. 

(h)  Weldon  v.  Riviere,  53  L. 
J.  Q.  B.  448,  D.  (see  preced- 
ing case. ) 

(t)  Wood  v.  Wood,   10  P.   D. 


172 ;  33  W.  R.  323,  D. 

(k)  Butler  v.  Butler.  14  Q.  B. 
D.  831,  1  C.  &E.  600:  Wills,  J. 
affirmed  53  L.  J.  Q.  B.  55  ;  34 
W.  R.  132,  C.  A.  ;  and  see  16  Q. 
B.  D.  374. 

(/)  Walrond  v.  Goldmann,  16 
Q.  B.  D.  21. 


PRESUMPTION    OF    DEATH.  39T 


Presumption  of  Death  after  Seven  Years''  Ab- 
sence. 

NEPEAN  v.  DOE.  [148.] 

[2  M.  &  W.  894  (1837).] 

The  effect  of  this  case  is  that  when  a  person  goes 
abroad  and  is  not  heard  of  for  seven  years  the  law  pre- 
sumes him  to  be  dead,  unless  the  circumstances  of  the 
case  are  such  as  to  account  for  his  not  being  heard  of 
without  assuming  his  death,  but  does  not  presume  that 
he  died  at  any  particular  period  during  those  seven 
years. 

Distressing  cases,  leading  to  litigation,  occasionally  arise  where  Case  of  seve- 
whole  families  have  perished  by  the  same  calamity.     One  well-  ral  perishing 
known  case  on  the  subject  is  Wing  v.  Angrave  (m),  where  a  hus-  by  same 
band,  wife,   and   children   were  all  washed  away  by  the  same  ca  ami  ^' 
wave. 

In  the  Roman  law,  if  a  father  and  son  died  under  such  circum-  Roman  law. 
stances  it  was  presumed  that  the  son  died  first  if  he  was  under 
the  age  of  puberty,  but  if  he  was  over  that  age  that  the  father 
died  first;  the  principle  being  that  the  father  would  probably  be 
the  stronger  of  the  two  in  the  former  case,  and  the  son  in  the  lat- 
ter.    We  have  no  presumptions  of  this  kind,  and  when  a  similar  No  presump- 
case  arises  we  call  on  a  claimant,  by  survivorship,  to  give  affirm-  tion  in  Eng- 
ative  proot  of  what  he  asserts.  ls  l    a^v ' 

The  meaning  of  "not  being  heard  of  for  seven  years"  was  Meanine  of 
much  discussed  in  the  case  of  the   Prudential   Assurance  Com-  "not  being 
pany  v.  Edmonds  (»);.  and  although   there  was  considerable  dif-  heard  of." 
ference  of  opinion  on  the  special  circumstances  of  that  case,it  may 
be  taken  as  clear  that  there  is  no  absolute  and  positive  rule  of 
law  that  a  mere  physical  hearing  would  put  an  end  to  the  pre- 
sumption of  death.      "  Not  being  heard  of"  means  this:  that  en- 
quiry has  been  made,  and  that  no  member  of  the  family  has 
heard  anything  about  the  missing  man  which  might  raise  a  rea- 
sonable doubt  in  their  minds  whether  he  must  have  been  no 
more.     This,  however,  is  not  a  complete  and  comprehensive  ex- 
planation,  because,   even  if  a  statement   creating  a   reasonable 
doubt  has  been  made  to  the  family,  and  the  foundation  of  such 

(m)  8  H.  L.  C.  183.  (n)  2  App.  Ca.  487. 

27  COMMON   LAW. 


398 


PRESUMPTION    OF   DEATH. 


Case  of 
Prudential 
Assurance 
Co.  v  Ed- 
monds. 


No  presump- 
tion as  to 
time  of  death. 

In  re  Phene's 
Trusts. 


In  re  Cor- 
bishley's 
Trusts. 


Conflicting 
presump- 
tions in 
bigamy 
cases. 


statement  is  subsequently  disproved,  then  of  course  it  will  go  for 
nothing,  and  the  presumption  of  death  will,  in  the  absence  of 
further  evidence,  arise. 

Thus,  in  the  case  last  mentioned,  a  member  of  the  family 
stated  that  on  one  occasion  during  the  seven  years  she  saw  a  man 
whom  she  believed  to  be  the  missing  one,  but  before  she  could 
speak  to  him  he  was  lost  in  the  passing  crowd.  This  circum- 
stance she  at  once  communicated  to  her  relatives;  but  it  was 
held  that  the  presumption  of  death  would  not  thereby  be  rebut- 
ted, unless  the  jury  found  as  a  fact  that  she  was  not  mistaken  in 
her  identification. 

The  question  at  what  time  within  the  period  of  seven  years  the 
lost  man  died  is  not  a  matter  of  presumption,  but  of  evidence, 
and  the  onus  of  proving  that  the  death  took  place  at  any  partic- 
ular time  lies  upon  the  person  who  claims  a  right  to  the  estab- 
lishment of  which  that  fact  is  essential.  Thus,  in  a  well-known 
case  (o),  a  testator  died  in  January,  1861,  having  bequeathed  his 
residuary  estate  equally  between  his  nephews  and  nieces.  One 
of  the  nephews  had  gone  to  America  many  years  before,  and  was 
last  heard  of  as  alive  in  June,  1860.  In  the  year  1869  his  per- 
sonal representative  sought  to  establish  his  title  to  the  share  of 
the  missing  one;  but  the  attempt  was  unsuccessful,  for  although 
there  was  a  presumption  that  the  lost  man  was  dead  at  the  time 
of  the  application  in  1869,  there  was  no  presumption  that  he  was 
alive  at  the  time  of  the  testator's  death,  and  therefore  no  evi- 
dence that  he  was  ever  entitled  to  any  share  at  all.  There  is  no 
presumption  of  law  in  favour  of  the  continuance  of  life,  though 
an  inference  of  fact  may  clearly  be  legitimately  drawn  that  a 
person  alive  and  in  health  on  a  certain  day  was  alive  a  short  time 
afterwards. 

It  is  important  to  observe  that  where  the  missing  person  does 
not  take  a  share  under  a  will,  as  In  re  Phene's  Trusts,  but  under 
a  settlement  containing  a  trust  in  his  favour,  a  different  rule 
would  appear  to  apply.  In  the  case  of  a  settlement  containing  a 
trust  for  a  person  named,  such  person  must,  at  any  rate  accord- 
ing to  Hall,  V.-C.  (p),  "until  the  contrary  is  shown,  be  taken  to 
have  been  in  existence  at  the  date  of  that  settlement.  The  trust, 
then,  being  so  created,  the  representative  of  that  person  (he  be- 
ing dead)  is  entitled  to  the  benefit  of  that  trust  until  those  who 
say  that  the  trust  failed  altogether  prove  such  failure  by  affirma- 
tive evidence." 

A  somewhat  curious  case  (q)  of  conflicting  presumptions  re- 
cently came  before  the  Court  of  Crown  Cases  Reserved.  A  mar- 
riage admitted  to  be  valid,  was  contracted  by  the  prisoner  in 
1864;  there  was  evidence  that  the  woman  then  married  to  the 

(o)  In  re  Phene's  Trusts,  L.     L.  J.  49  Ch.  at  p.  267. 
R.  5  Ch.  Ap.  139.  (q)  Reg.  r.  Willshire,   L.   E. 

(p)  In  re  Corbishley's  Trusts,     6  Q.  B.  D.  366. 


ESTOPPEL.  399 

prisoner  was  alive  in  1868.  In  1879  the  prisoner  went  through 
the  ceremony  of  marriage  with  another  woman,  and  again,  in 
1880,  with  a  third,  and  \v;is  thereupon  indicted  for  bigamy.  The 
wife  alleged  in  the  indictment  to  be  alive  at  the  time  of  the  com- 
mission of  the  offence  was  the  one  with  whom  the  prisoner  had 
gone  through  a  form  of  marriage  in  1879.  It  was  held  that  on 
these  facts  the  prisoner  ought  not  to  have  been  convicted,  as  the 
jury  had  not  found  affirmatively  that  the  wife  married  in  1864 
was  dead  at  the  time  of  the  celebration  of  the  marriage  in  1879. 
It  is  true  that,  if  nothing  was  heard  of  the  first  woman  after 
1808,  the  prisoner  could  not  have  been  convicted  of  bigamy  in 
respect  of  the  marriage  of  1879  ;  but,  so  far  as  the  charge  under 
the  consideration  of  the  court  was  concerned,  it  was  held  that 
"there  was  a  presumption  that  her  life  continued.  The  only 
evidence  to  the  contrary  was  that  the  prisoner  presented  himself 
as  a  bachelor  to  be  married  in  1879.  Whether  that  would  have 
satisfied  the  jury  that  his  former  wile  was  then  dead  was  a  ques- 
tion for  them  to  decide,  but  it  was  not  left  to  them  for  decision  " 
('■)• 

Money  was  payable  to  a  tenant  pur  autre  vie  under  a  policy,  Evidence  of 
after  proof,  to  the  satisfaction  of  directors,  of  the  cestui  que  vie.  death. 
An  order  was  made  under  (i  Anne,  c.  72,  that  the  cestui  que  vie 
ought  to  be  deemed  and  taken  to  be  dead  under  the  statute  and 
the  remaindermen  entered.  The  court  held  that  the  directors 
might  reasonably  require  further  evidence  of  the  death  of  the 
cestui  que  vie  (s). 


Estoppel. 

DUCHESS   OP  KINGSTON'S  CASE.  [149.] 

[20  How.  St  A.  TBI.  (1776).] 

This  was  a  prosecution  for  bigamy,  and  the  judges 
were  required  to  answer  the  following  questions  : — 

(1.)  If  a  spiritual  court  decides  that  a  marriage  is 
null  and  void,  is  its  decision  so  conclusive  on  the  sub- 


(r)  Per  Sir  Henry  Hawkins.     527  ;  50  L.  T.  323  ;  32  W.   R. 
(s)  Doyle  v.  City  of  Glasgow     476 ;  48  J.  P.  374,  North,  J. 
Life  Assurance  Co. ,  53  L.  J.  Ch. 


400  ESTOPPEL. 

ject  that  the  marriage  cannot  bo  proved  against  one  of 
the  parties  in  an  indictment  for  bigamy  ? 

(2.)  Supposing  the  spiritual  court's  decision  is  final, 
may  counsel  for  the  prosecution  destroy  its  effect  by 
showing  that  it  was  brought  about  by  fraud  and  col- 
lusion. 

The  first  question  was  answered  in  the  negative,  so 
that  it  did  not  much  matter  what  the  answer  to  the 
second  was.  That  question,  however,  the  judges  an- 
swered in  the  affirmative. 


[150. 


YOUNG  v.   GROTE. 
[  1    BlNG.  253  (1827).] 


Mr.  Young  when  he  went  away  from  home  used  to 
leave  blank  cheques  signed  for  Mrs.  Young  to  fill  up 
according  to  her  necessities.  But  on  one  occasion  Mrs. 
Young  did  it  so  clumsily  that  an  enterprising  bearer  was 
able  to  alter  "50"  to  "  350,"  and  "fifty"  to  "three 
hundred  and  fifty,"  and  get  the  cheque  cashed  in  its 
improved  form.  On  these  facts,  Mr.  Young  was  held 
to  be  estopped  by  his  negligence  from  throwing  the  loss 
on  his  bankers. 


Various 
kinds  of 
estoppel. 


Estoppel  by 
record. 


Estoppels  I  which  Lord  Coke  considered  "a  curious  and  excel- 
lenl  sorl  of  learning,")  are  of  three  kinds : — 
1.   By  mat  i  it  of  record. 

'.'.     By  deed. 

::.   By  conduct  (otherwise  known  as  in  pais). 

i.  Generally,  when  the  parties  are  the  same,  and  the  point 
litigated  the  same,  a  former' judgment  recorded  is  conclusive. 
Thus,  if  a  record  in  a  former  action  is  tendered  in  evidence,  the 
other  side  cannot  be  permitted  to  show  that  the  officer  of  the 

court  made  a  mistake  ami  entered  the  verdict  On  the  tvrong  plea 
(t).  So,  too,  if.  in  an  action  of  trespass  by  .Jones  against  Brown, 
an  issue  is  taken  on  the  plea  that  the.  laud  belongs  to  Brown,  and 

(t)  Read  v.  Jackson,  1    East,  Norton  v.  Levy;  48   L.  T.  703; 

355;'andsee   Peareth    v.    Mar-  31    W.    R.    720.— Pollock,     B.; 

riott.  22  Ch.  I).    182;  52  L.  J.  also  see  /„  re  May,  25  Ch.  D. 

Ch.  22]  :    18   L.   T.  170  ;  31  W.  231  ;  32  W.   R.  X.  J7.— Pearson, 

R.  68,  C.  A. :  and  I  ten  Les,  in  re,  J. 


ESTOPPEL.  401 

final  judgment  is  entered  on-this  issue  in  favour  of  Jones.  I'.rown 
cannot,  in  a  subsequent  action  against  the  Bame  defendant  for 
trespass  by  digging  up  coals  in  the  same  land,  plead  that  the 
land  is  his  and  Jones's  («),     But  if  a  plaintiff  sues  in  a  different 

right  in  the  second  action  from  what  he  did  in  the  first  [e.g.t  if 
the  administratrix  of  a  person  who  has  been  killed  by  the  negli- 
gence of  a  railway  company  sues  first  under  Lord  Campbell's 
Act.  and  then,  in  another  action,  for  damage  to  the  personal  es- 
tate) there  is  no  estoppel  (*). 

It  is  to  be  observed  that  in  an  estoppel  by  record,  not  only  the 
parties  to  the  action  themselves,  but  their  privies  also  {i.e.,  those 
who  claim  under  them)  are  (stopped.     But,  although  a  judgment  Judgment 
is  conclusive  proof  as  against  everybody  of  the  existence  of  that  not  conelu- 
Btate  of  things  which  is  the  legal  effect  of  the  judgment,  vet,  on  Slve  as  *° 

the  principle  res  inter  alios  acta  aiteri  nocere  non  potest,  it  is  not,  ,        »     '  *! 

1  r  to  grounds  on 

so  far  as  strangers   are  concerned,  conclusive  proof  of  the   facts  which  it  is 

stated  to  be  the  grounds  on  which  it  is  based.      How  far  a  judg-  based, 
inent  is  conclusive  as  between  parties  and  privies  of  facts  form- 
ing the  ground  of  the  judgment  may.  perhaps,  be  a  question  ad- 
mitting of  some  doubt.      Mr.   Justice  Stephen,  in   his  Digest  of  How  far  this 
the  Law  of  Evidence,  says  (y)  :     "Every  judgment  is  conclusive  applies  to 
proof  as  against  parties  and  privies  of  facts  directly  in  issue  in  P8^68  ;uul 
the  case  actually  decided  by  the  court,  and    appearing  from  the  statement  of 
judgment  itself  to  be  the  ground  on  which  it  was  based  :  unless  law  by 
evidence  was  admitted  in  the  action  in  which  the  judgment  was  Stephen,  J. 
delivered  which  is  excluded  in  the  action  in  which  that  judg- 
ment is  intended  to  be  proved."     Vice-Chancellor  Knight  Bruce,  y    o 
however,  expressed  his  opinion  on  the  subject  thus  (z)  :   "  It  is,  Knight 
I  think,  to  be  collected  that  the  rule,  against  re-agitating  mat-  Bruce's 
ter  adjudicated,    is  subject   generally   to   this   restriction — that,  °Pimon- 
however  essential  the  establishment   of  particular   facts  may  be 
to  the  soundness  of  judicial  decision,  however  it  may  proceed  on 
them  as  established,  and  however  binding  and  conclusive  the  de- 
cision may  be  as  t  >  its   immediate  and   direct   object,  those  facts 
are  not  all  necessarily  established  conclusively  between  the  par- 
ties and  that  either  may  again   litigate  them  for  any  other  pur- 
pose as  to  which  they    may  come  in  question  :  provided   the  im- 
mediate subject  of  the   decision  be    not    attempted    to  be  with- 
drawn from  its  operation  so  as  to  defeat  its  direct  object."    These 
remarks  were  quoted  with  approval  by  Selborne,  L.C.,  in  a  very  jj 
recent  ease    „).    [n  which   the  facts  were   these:      An  application    w^,h-n 
to  justices  by  a  local  board    to  recover  a   proportion  of  sewering 
expenses- from  the  owner  of  premises  abutting  on  the  street  in 
which  the  sewer  had  been  laid,  was  dismissed  by  the  just  ices  on 
the  ground  that    the  street  was  a  highway    repairable  by  the  in- 

[«)   Out  ram   r.    Morewood,  3  (z)  2  -Sm.  L.  C.  (7th  ed.),  p' 

East,  346.  807. 

in  Leggott  r.  c.N.  Ky.  Co.,  (a)  Reg.    v.    llutchings.    6  Q. 

45  L.  J..  Q.  B.,  557.  B.  D.  300. 

(y).3rd  ed.,  p.  49. 


402 


ESTOPPEL. 


Fraud  or 
collusion 

may  be 
proved. 


Estoppel  by 

deed. 


Estoppel  in 


habitants  at  large.  Some  years  afterwards  the  local  board  made 
a  similar  application  against  the  same  person  in  respect  of  the 
same  premises.  The  Court  of  Appeal  (reversing  the  decision  of 
tin-  Queen's  Bench  Division),  held  that,  under  these  circum- 
stances, the  adjudication  on  the  first  application  did  note-stop 
the  local  board  from  claiming  the  expenses  they  claimed  on  the 
second  application.  The  ground  of  this  decision  would  seem  to 
be  that  the  justices  exceeded  their  jurisdiction  in  stating  the 
reason  on  which  their  dismissal  of  the  application  had  been 
based  ;  and,  if  they  had  merely  found,  as  they  ought  to  have 
done,  that  the  complaint  of  the  local  board  was  not  proved,  the 
order  of  dismissal  could  not  have  operated  as  an  estoppel  except 
against  a  repetition  of  the  same  demand  for  the  same  quota  of 
expenses. 

it  is  to  be  observed  that  when  a  judgment  is  put  in  evidence 
the  person  against  whom  it  is  offered  may  prove  that  it  was  ob- 
tained by  any  fraud  or  collusion  to  which  neither  he,  nor  any 
one  to  whom  he  is  a  privy,  was  a  party.  Thus,  it  was  held  Aery 
recently  (b)  that  it  is  a  good  defence  to  an  action  on  a  foreign 
judgment,  that  such  judgment  was  procured  by  the  fraudulent 
misrepresentation  of  the  plaintiff. 

2.  To  execute  .a  deed  is  a  very  solemn  thing,  and  therefore 
whatever  assertion  a  man  has  made  in  his  deed  he  must  stand 
by.  If  you  execute  a  bond  in  one  name,  you  are  estopped  from 
pleading  that  your  name  is  otherwise.  So,  though  a  person  who 
has  given  an  ordinary  receipt  may  show  that  he  has  never  really 
received  the  money,  a  person  who  has  given  a  receipt  under  seal 
cannot.  And  the  recitals  in  a  deed  are  just  as  binding  as  any 
other  part.  "  I  do  not  see,"  said  a  judge  once,  "that  a  state- 
ment such  as  this  is  the  less  positive  because  it  is  introduced  by 
a  '  Whereas.'  " 

Two  qualifications  of  the  doctrine  of  estoppel  by  deed  must  he 
remembered  : — 

(1.)  Although  a  person  acknowledges  in  his  deed  that  he  has 
received  the  consideration  money  for  the  service  he  undertakes 
to  perform,  he  may  nevertheless  show  that  as  a  matter  of  fact  he 
has  not  received  it. 

(2.)  A  person  who  is  sued  on  his  deed  may  show  that  it  is 
founded  on  fraud  or  illegality,  and.  if  he  proves  it,  the  document 
becomes  worthless  (e).  The  great  case  on  this  subject  is  Collins 
v.  Blantern,  which  might  be  glanced  at  (ante). 

3.  The  doctrine  of  estoppel  by  conduct  as  extracted  from 
Pickard  v.  Scars  (d)  and  Freeman  v.  Cooke  (r)  may,  without  at- 
tempting scientific  precision,  be  thus  stated  : — 

"Where  one  person  by  his  words  or  conduct  represents  a  certain 


>>    Abouloffv.  Oppenheimer, 

•17  1..  -J'..  \.  >..  325. 
(c)  P.  130. 


d    6  A.  el-  F.  469. 
-     2  Ex.  654. 


ESTOPPEL.  403 

state  of  tilings  to  exist,  and  thereby  induces — no  matter  whether 
he  intended  it  or  not — another  to  alter  his  position,  that  other  is 
not  to  be  prejudiced  by  the  perfidy  or  fickleness  of  the  first  per- 
son. 

Loftus  r.  Maw  (/)  is  rather  an  extreme  illustration  of  perhaps 
doubtful  authority.  An  old  gentleman  induced  a  niece  to  come 
and  live  with  him  and  nurse  his  old  age  by  promising  to  remem- 
ber her  in  his  will.  But  the  old  deceiver  did  not  remember  her.  It 
was  held,  however,  in  an  action  against  the  executors,  that  he 
was  estopped  from  omitting  to  make  some  provisions  for  her,  as 
she  had  altered  her  position  in  consequence  of  his  representations. 

In  the  recent  case  of  Alderson  v.  Maddison,  which  was  an  action  Alderson  v 
by  the  plaintiff,  as  heir-at-law  of  Alderson,  to  recover  the  title  Maddison. 
deeds  of  a  farm,  the  defendant  counterclaimed  that  she  was  en- 
titled to  a  life  estate  in  the  farm.  It  appeared  that  the  defend- 
ant was  induced  to  serve  Alderson  (who  died  intestate)  as  his 
housekeeper  for  many  years,  and  to  give  up  other  prospects  of 
establishment  in  life,  by  a  verbal  promise  that  Alderson  would 
leave  her  a  life  interest  in  the  farm.  But,  as  was  there  pointed  . 
out,  to  contend  that  Alderson's  heir-at-law  was  estopped  by  Alder- 
son's  conduct  from  disputing  the  validity  of  an  attested  docu- 
ment, which  purported  to  be  Alderson's  will,  would  be. to  repeal 
the  Statute  of  "Wills.  Lord  Selborne  said  :  "I  have  always  un- 
derstood it  to  have  been  decided  that  the  doctrine  of  estoppel  by 
representation  is  applicable  only  to  representations  as  to  some 
state  of  facts  alleged  at  the  time  actually  in  existence,  and  not  to 
promises  de  futuro,  which,  if  binding  at  all,  must  be  binding  as 
contracts  "  (ff). 

But  there  are  other  cases  of  estoppel  by  conduct  besides  those  o+Viot.  „„„„„ 
on  the  principal  of  Pickard  v.  Sears  and  Freeman  v.  Cooke.     A  0f  estoppel 
tenant,  for  instance,  is  estopped  from  disputing  his  landlord's  by  conduct, 
title,  and  the  accepter  of  a  bill  of  exchange  from  denying  the  sig- 
nature of  the  drawer  or  his  capacity  to  draw  ;  and  a  young  gentle- 
man who  takes  rent  after  he  becomes  of  age  is  estopped  from  de- 
nying that  the  person  he  takes  it  from  is  his  tenant.     A  recent 
case  of  some  importance  is  Harris  v.  Truman,  Hanbury  &  Co  (If,  Harris  v. 
where  the  defendants  had  employed  one  Fairman  to  buy  barley,  Truman, 
and  to  malt  it  for  them  only.     Fairman.  for  the  purpose  of  pur-  Hanbury  & 
chasing  such  barley,  was  empowered   to  draw  upon  a  fund  paid 
into  a  bank  by  the  defendants.     Fairman,  having  bought  barley 
upon  credit,  and  at  the  same  time,  fraudulently  drawn  out  money 
from  the  fund  so  supplied  by  the  defendants,  became  bankrupt, 
and  the  defendants  thereupon  seized  all  the  barley  and  malt  upon 

(/)  L.  J.~32Ch.  49.  10  C.P. ;  Scarf  p.  Jardine,  7  App. 

(g)  8  App.  Cases   473  ;  52  L.  Cases,  and  Fell  v.  Parkin,  47  L. 

J.  Q.  B.  737;  49  L.  T.  303;  31  T.,-N.  S.,    350;  52    L.  J.  Q.  B. 

W.  R.  820  ;  47   J.   P.  821—  per  99.— Mat  hew  J. 

Selborne,  L.  C,  and  see  Carr  v.  (h)  L.  J.  51  Q.  B.  338. 
L.  &  N.  W.  Railway  Co.,  L.  R.. 


Co. 


404 


ESTOPPEL. 


Estoppel  by 
negligence. 


Baxendale  v. 
Bennett. 


Arnold  v. 
Cheque 

Bank. 


his  premises,  the  value  of  which  was  less  than  the  moneys  which 
he  had  drawn  out.  It  was  urged  by  the  plaintiff,  the  trustee  in 
his  bankruptcy,  that  the  barley  dishonestly  bought  by  Fairman 
was  not  bought  for  the  defendants  at  all  ;  hut  was  bought  with 
the  intention  of  selling  it  again.  But,  as  Brett,  L.  J.,  observed, 
"If  Fairman  had  been  plaintiff  in  this  action  it  is  impossible, 
after  he  had  represented  to  the  defendants  by  the  accounts  that 
all  the  barley  at  the  malting  was  barley  bought  by  him,  and  ap- 
proved by  the  defendants,  and  to  be  paid  for  by  them,  and  after 
he  had  drawn  upon  the  defendants'  account  for  the  price,  that  he 
would  not  be  estopped  from  saying  that  he  had  been  defrauding 
the  defendants.  If  that  be  so,  the  trustee  in  bankruptcy  who  is 
sueing  upon  the  relation  between  Fairman  and  the  defendants 
would  also  be  estopped  from  relying  on  the  fraud  of  the  bank- 
rupt," 

The  case  of  Young  v.  Grote  may  be  usefully  remembered  as  an 
illustration  of  estoppel  by  negligence — that  is,  of  a  kind  of  estop- 
pel by  conduct,  viz.,  negligent  conduct.  On  this  subject  there 
has  recently  been  a  decision  (i)  of  some  importance.  A  person 
named  Holmes,  becoming  impecunious,  asked  the  defendant  for 
his  acceptance  to  an  accommodation  bill.  Willing  to  oblige,  the 
defendant  gave  him  his  blank  acceptance  on  a  stamped  paper,  and 
authorised  him  to  fill  in  his  name  as  drawer.  Holmes,  however, 
finding  that  after  all  he  did  not  require  accommodation,  returned 
the  paper  to  the  defendant  in  the  same  state  in  which  he  had  re- 
ceived it  from  him.  The  defendant  put  it  into  a  drawer  which 
he  did  not  lock,  and  to  which  his  clerk,  laundress,  &c,  had  access. 
From  this  drawer  it  was  stolen,  and  finally,  after  having  had  a 
drawer's  name  put  onto  it,  came  into  the-hands  of  the  plaintiff 
as  indorsee  for  value.  It  was  held  in  an  action  that  the  defend- 
ant was  not  liable  on  this  bill.  Young  v.  Grote  was  distinguished 
by  Bramwell,  L.  J.,  from  this  case,  on  the  ground  that  in  the 
former  case  the  defendant  had  voluntarily  parted  with  the  in- 
strument, while  in  the  latter  it  had  been  got  from  him  by  the 
commission  of  a  crime. 

In  a  rather  earlier  case  (k),  of  some  importance,  it  had  been 
held  that  "negligence  in  the  custody  of  a  craft,  or  in  its  trans- 
mission by  post,  will  not  disentitle  the  owner  of  it  to  recover  the 
draft  or  its  proceeds  from  one  who  has  wrongfully  obtained  pos- 
session of  it,"  and  that  " negligence  to  amount  to  an  estoppel 
must  be  in  the  transaction  itself,  and  be  the  proximate  cause  of 
leading  the  third  party  into  mistake,  and  also  must  be  the  neglect 
of  some  duty  which  is  owing  to  such  third  party,  or  to  the  gen- 
eral public. 


(t)  Baxendale    v.   Bennett,   3 
Q.  B.  1).  525. 

Arnold  v.  ( Iheque  Bank,  1 
C.  P.  D.  578,  and  See  Swan  v. 


North  British  Australasian  Co., 
2  H.  &  C.  17"),  and  Garrard  v. 
Lewis,  10  Q.  B.  D.  30. 


ESTOPPEL.  405 

In  McKenzie  v.  British  Linen  Co.  it  was  laid  down  that  a  per-  McKenzie  r 
son  wh  >  know-;  that  a  bank  is  relying  upon  his  forged  signature  British  Linen 
to  a  bill,  cannot  lie  1  iy  and  not  divulge  the  fact  until  he  sees  the  po-  C°- 
sit  ion  of  the  bank  is  altered  for  the  worse.  But  there  is  no  prin- 
ciple on  which  his  mere  silence  for  a  fortnight  from  the  time 
when  he  first  knew  of  the  forgery,  during  which  the  position  of 
the  bank  was  in  no  way  prejudiced  or  altered,  can  be  held  to  be 
an  admission  or  adoption  of  liability  or  an  estoppel.  The  names 
of  A.  and  B.  appeared  on  a  bill  as  drawers  and  endorsers  to  the 
B.  L.  Co.  The  B.  L.  Co.'s  Inverness  Bank  discounted  it  for  C, 
who  signed  it  as  acceptor.  They  had  had  no  previous  dealings 
with  A.  or  B.  Being  dishonoured  when  due  notice  to  that  ef- 
fect Avas  sent  to  A.  and  B.  and  received  late  on  a  Saturday,  but 
the}*  did  not  communicate  with  the  bank.  On  the  following 
Monday,  being  the  14th  April,  C.  brought  to  the  B.  L.  Co.  a 
blank  bill  with  A.  &  B.'s  names  as  drawers  and  indorsers,  ap- 
parently in  the  same  handwriting  as  the  previous  bill.  It  was 
agreed  to  accept  it  as  a  renewal  of  the  previous  bill,  but  for  a  less 
amount,  the  difference  being  paid  in  cash  by  C.  Three  days  be- 
fore it  was  due,  notice  was  sent  to  A.  and  B.,  and  again,  when  it 
was  dishonoured,  and  then  through  the  B.  L.  Co.'s  law  agent. 
A  fortnight  after  the  first  notice  the  B.  L.  Co.  was  informed  for 
the  first  time  that  A.  and  B.'s  signatures  were  forgeries,  and  that 
they  declined  to  pay  the  amount  in  the  bill.  A.  alleged  that  he 
called  on  C.  on  the  14th  April  about  the  first  bill,  that  C.  ad- 
mitted that  he  had  forged  his  name,  handed  him  the  bill,  and 
solemnly  assured  him  that  it  had  been  taken  up  by  cash  ;  and  so 
assured  he  did  not  think  it  necessary  to  communicate  with  the 
bank.  He  admitted  that  on  that  day  he  drank  with  C.  and  bor- 
rowed £'4  of  him.  He  denied  positively  any  knowledge  of  the 
second  bill  until  he  received  the  bank  notices.  C.  was  convicted 
of  the  forgery.  The  B.  L.  Co.  charged  A.  with  payment  of  the 
bill  on  the  ground  that  he  had  either  authorized  the  use  of  his 
name,  or  had  subsequently  adopted,  and  accredited  the  bill,  and 
therefore  was  estopped  from  denying  his  liability.  The  court 
held  that  on  the  facts  proved,  A.  had  neither  authorized  nor  as- 
sented t:>  the  use  of  his  name  :  nor  did  the  circumstances  of  the 
case  raise  any  estoppel  against  him  (I). 

The  defendants  received  a  consignment  of  wheat  and  issued  a  Coventry  v. 
delivery  order  for  it,  which  came   into  the  hands  of  B.     Upon  Great 

this  deliverv  order  B.  obtained  advances  from  plaintiffs.     Shortly  I'-astern 

,  .  „     ,         .        ,  ,  ,  ..  ,       .  Railway  Co. 

afterwards,  the  defendants  issued  a  second  delivery  order  in  re- 
spect of  thesame  consignment  of  wheat.  The  two  delivery  orders 
were  different,  and  such  as  might  reasonably  be  supposed  to  re- 
late to  distinct  consignments  of  wheat.  Upon  this  second  deliv- 
ery order  B.  obtained  further  advances  from   the  plaintiffs   who 

■  {I)  6  App.   Cases,   82;   Dictum  of  Parke,    B.,  in  Freeman  v. 
Cooke  approved  of. 


406 


ESTOPPEL. 


i  'x  parte 

!  I  ivies. 


York  Tram- 
ways r. 
Willows. 


R  >mford 
Canal  Co. 
Pocock's 
claim. 


were  under  the  belief  that  the  delivery  orders  related  to  distinct 
consignments  of  wheat.  B.  having  afterwards  become  insolvent, 
the  court  decided  that  the  defendants  were  estopped  by  their 
negligence  from  showing  that  the  two  delivery  orders  related 
only  to  one  consignment  of  wheat,  and  that  they  were  liable  to 
compensate  the  plaintiffs  for  the  loss  sustained  by  them  through 
the  advances  to  B.  (m). 

Although  in  certain  cases  a  bailee  may  set  up  the  just  iertii, 
yet  if  he  accepts  the  bailment  with  full  knowledge  of  an  adverse 
claim,  he  cannot  afterwards  set  up  the  existence  of  such  claim  as 
against  his  bailor  (n). 

In  the  York  Tramways  Company  v.  Willows,  the  plaintiff 
company  was  constituted  by  seven  persons  signing  the  memo- 
randum of  association.  Afterwards  they  all  were  summoned  to 
attend  a  meeting,  but  only  four  attended,  and  they  elected  three 
directors.  These  three  elected  three  other  directors.  The  three 
original  directors  resigned,  and  afterwards  one  of  the  remaining 
directors  sent  in  his  resignation  The  defendant  then  applied 
for  fifty  shares.  The  two  remaining  directors  resolved  that  fifty 
shares  should  be  allotted  to  the  defendant,  that  he  should  be  ap- 
pointed a  director,  and  that  the  resignation  of  the  retiring  di- 
rector should  be  accepted.  The  defendant  afterwards  attended  a 
meeting  of  directors,  confirmed  the  allotment  to  himself,  and 
joined  in  passing  a  resolution,  that  the  shares  allotted  to  him- 
self should  be  paid  up  in  full  forthwith.  The  defendant  subse- 
quently withdrew  his  application  and  refused  to  pay  the  amount 
of  the  shares  allotted  to  him.  By  the  articles  of  association  the 
number  of  the  directors  was  to  be  not  less  than  three,  and  any 
casual  vacancy  occurring  in  the  board  might  be  filled  up  by  the 
board,  and  the  continuing  board  might  act  notwithstanding  any 
vacancy  in  their  body.  The  court  held  that  the  defendant  was 
liable  to  pay  the  amount  of  the  shares  (o). 

Where  a  company  has  power  to  issue  legally  transferable  se- 
curities and  irregularities  in  the  issue  cannot  be  set  up  against 
even  the  original  holder  if  he  has  a  right  to  presume  omnia  rite 
acta.  If  such  securities  be  legally  transferable,  such  an  irregu- 
larity a  fortiori  any  equity  against  the  original  holder  cannot  be 
asserted  by  the  company  against  a  bond  fide  transferee  for  value, 
without  notice.  Nor  can  such  an  equity  be  set  up  against  an 
equitable  transferee  whether  the  securities  were  transferable  at 
law  <>r  not.  if  by  the  original  conduct  of  the  company  in  issuing 
ihe  securities  or  by  their  subsequent  dealing  with  the  transferee 
he  has  a  superior  equity.  If  the  original  conduct  of  the  company 
in  issuing  debentures  was  such  that  the  public  were  justifh  d  in 
treating  it  as  a  representation  that  they  were  legally  transfer- 


al) Coventry  v.  Great  East- 
ern Railway  Co..  11  Q.  B.  D. 
776:52  L.  J.  Q.'B.  694  :  49  L. 
T.  641  :  C.  A. 


(n)  Ex  parte  Davies  ;  In   re 
Sadler,  19  Ch.  D.  86. 

(o)  8  Q.  B.  D.  685. 


ESTOl'PEL.  407 

able,  there  would  be  an  equity  on  the  part  of  any  person  who  had 
agreed  for  value  to  take  ;i  transfer  of  these  debentures  to  restrain 
the  company  from  pleading  their  Invalidity,  although  that  might 
be  a  defence  at  law  to  an  action  by  the  transferor  (j)). 

After  the  creditors  of  a  bankrupt  have  resolved  under  sec.  28  Ex  purl* 
of  the  Bankruptcy  Act,  1809,  to  accept  a  composition  offered  by  Bacon, 
the  bankrupt,  the  bankrupt,  though  undischarged,  has  a  locua 
standi  to  apply  to  the  court  to  reduce  the  amount  of  the  proof  of 
a  creditor,  and  the  mere  fact  that  the  proi  >f  has  been  upon  thelileof 
the  proceedings  in  the  bankruptcy  for  upwards  of  a  year  does  not 
estop  the  bankrupt  from  making  the  application.  The  file  of  the 
proceedings  in  a  bankruptcy  is  not  in  the  nature  of  a  record,  and 
does  not  create  an  estoppel  (q). 

Justices  made  an  order  in  bastardy  directing  the  putative  lather  Williams  v. 
to  pay  until  the  mother  married,  and  the  father  accordingly  made  Davies. 
payments,  some  of  which  were  made  within  a  year  from  the 
birth.  Afterwards  the  mother  married,  but  her  husband  died, 
and  thereupon  on  her  application  justices  made  a  second  order  on 
the  putative  father  to  pay.  The  court  decided  that  the  matter 
was  res  judicata,  and  therefore  the  order  was  invalid  (r). 

The  plaintiff,  who  had  obtained  damages  in  the  county  court  Clark  v. 
for  a  misrepi'esentation  under  which  he  had  been  induced  to  en-  Yorke. 
ter  into  a  contract,  brought  an  action  in  the  High  Court  for  fur- 
ther damages  accrued  since  judgment  in  the  county  court.     It 
was  decided  that  a  tort*  not  being  a  continuing  cause  of  action, 
no  further  damages  could  be  obtained  (s). 

The  plaintiff  brought  an  action  in  the  county  court  for  dam-  j>runs(jen  v 
age  to  his  cab  through  the  defendant's  negligence,  and  having  Humphreys, 
recovered  the  amount  claimed,  brought  an  action  in  the  divi- 
sional court  against  the  defendant  claiming  damages  for  personal 
injury  sustained  by  the  plaintiff  through  the  same  negligence. 
The  court  decided  that  inasmuch  as  the  damages  for  personal  in- 
juries might  have  been  claimed  in  the  first  action,  the  judgment 
recovered  in  it  was  a  bar  to  subsequent  proceedings.  This  deci- 
sion, however,  was  reversed  in  the  court  of  appeal  which  held 
the  plaintiff  was  entitled  to  recover  as  the  causes  of  action  were 
distinct  (t). 

(p)  In  re  Eomford  Canal  Co.,  (s)  Clarke  v.  Yorke,  52  L.  J. 

Pocock'sclaim,Trickett'sclaim,  Ch.  32  ;  -17  L.   T.   381  ;  31  W. 

Carew's  claim,  24  Ch.  D!  85.  R.  62  ;  Pearson,  J. 

{q)  Ex  parte Bacon, Inre Bond,  (r)  Brunsden  v.   Eumphrevs, 

M  Ch.  I).  447,  and  see  Keate  v.  11  Q.  B.  D.  712  ;  52  L.  J.  Q.  B. 

Phillips,    18  Ch.    D.   500,   and  756  D.;  53  L.  J.  Q.  476  ;  51   L. 

Harris  v.  Truman,   7  Q.   B.   D.  T.  529  ;  32  W.  R.  944  ;  49  J.  P. 

340  ;  9  Q.  B.  D.  204.  4  C.   A  ;  and  see  Mills   ».    Mo 

(r)  Williams  v.  Davies,  11  Q.  Ilraith,   8  A.pp.  Cases,  120;  52 

B.   D.  74  ;  52  L.  J.   M.  C.   87  ;  L.  J.    P.  C.  17  ;  48  L.  T.   689; 

47  J.  P.;  581  D.  31  W.  R.  591  P.  C. 


40S 


ESTOPPEL. 


llorsl'all  r. 
Halifax.  &C 


Wogaa  v, 
Doyle. 


Priestman   v 

Tliomas. 


Reg.  (.Brack 
enridge. 


Hall  v. 
West  End  Co. 


Webster  v. 
Armstrong. 


If  A.  makes  a  certain  representation  to  B.,  who  inconsequence 
of  that  representation  has  done  something  which  has  altered  his 
position,  A.  would  be  bound  Dy  the  representation,  though  ig- 
norantly  and  innocently  made  (u). 

In  a  recent  Irish  case  the  well-known  principle  of  law,  that  a 
tenant  is  estopped  from  denying  his  landlord's  title  is  well  ilr 
lust  rated  (.c). 

In  an  action  in  the  Probate  division,  L.  and  G.  propounded  an 
earlier  and  P.  a  later  will.  The  action  was  compromised,  and, 
by  consent,  verdict  and  judgment  were  taken  for  establishing  the 
earlier  will.  Subsequently  P.  discovered  that  the  earlier  will 
was  a  forgery,  and  in  an  action  in  the  Chancery  division,  to  which 
L.  and  G.  were  parties,  obtained  a  verdict  of  a  jury  to  that  effect 
and  judgment,  that  the  compromise  should  he  set  aside.  In 
another  action  in  the  Probate  division  for  revocation  of  the  pro- 
bate of  the  earlier  will,  the  court  held  that  L.  and  G.  were  es^ 
topped  from  denying  the  forger y  (y). 

L.  was  charged  with  night-poaching  under  9  Geo.  4,  c.  69,  and 
in  course  of  cross-examination  of  prosecutor's  witnesses,  the  jus- 
tices considered  he  had  been  illegally  arrested  and  discharged 
him.  L.  was  again  summoned  for  the  same  offence,  upon  the 
same  facts,  when  the  justices  held  that  they  had  no  jurisdiction, 
as  the  former  charge  was  res  judicata,  and  in  this  decision  they 
were  upheld  (z). 

The  plaintiff,  mortgagee  of  a  policy  of  life  insurance,  handed 
it  to  the  mortgagor  for  a  particular  purpose.  On  the  plaintiff 
demanding  it  back  from  time  to  time  the  mortgagor  made  ex- 
cuses for  not  doing  so  ;  and  the  plaintiff  then  forgot  that  it  had 
not  been  returned.  Afterwards  the  mortgagor  deposited  the  pol- 
icy with  the  defendants  to  secure  an  advance.  The  plaintiff  gave 
notice  of  his  interest  to  the  insurance  company  before  the  defend- 
ants. The  court  decided  that  the  plaintiff  was  entitled  to  the 
policy  as  against  the  defendants,  and  that  the  conduct  of  the 
plaintiff  had  not  been  such  as  to  estop  him  from  asserting  his 
claim  against  the  defendants  («). 

Where,  in  an  action  in  a  county  court,  a  defendent  has  relied 
upon  a  cause  of  action  by  way  of  counter  claim,  upon  which  he 
has  obtained  a  verdict  for  an  amount  beyond  the  jurisdiction  of 
the  county  court,  and  judgment  has  been  entered  for  the  defendant, 


(u)  Horsfall  v.  Halifax  and 
Huddersfield  Union  Banking 
Co.,  52  L.  J.  Ch.  599;  Pearson,  J. 

(x)  Wogan  v.  Doyle,  12  L.  R. 
Ir.  69  ;  Earl. 

(g)  Priestman  r.  Thomas,  9 
1'.  D.  210;  53  L.  J.  P.  109;  32 
W.  R.  842  ;  C.  A.  affirming  !>  P. 
D.  70  ;  53  L.  J.  P.  58  D. 

(z)  Reg.  v.  Brackenridge,  18 
J.  P.  293,  I).;  andsee  TheThv- 
atira,  8  P.   D.  155  ;  52  L.  J.  P. 


85  ;  49  L.  T.  406  ;  32  W.  R.  276, 
D.;  Ennis  v.  Rochford,  14  L.  R. 
Ir.  285,  Q.  B.  D. ;  Cropper  v. 
Smith,  26  Ch.  D.  700 ;  53  L.  J. 
Ch.  891  ;  33  W.  R.  60,  C.  A.; 
10  A  pp.  Cases.  249,  55  L.  J.  Ch. 
12  ;  53  L.  T.  330  ;  33  W.  R.  753, 
H.  L.  E. ;  Ghost's  Trusts,  In  re, 
49  L.  T.  588,  Kay,  J. 

(a)  Hall  v.  West  End  Advance 
Co.,  1  C.  &E.  161;  Williams,  J. 


ESTOPPEL.  409 

but  no  relief  has  been  given  in  respectof  the  balance  inexcessof 
the  plaintiffs  claim,  the  defendant  isnot  estopped  from  afterwards 
bringing  an  action  in  the  High  Court  upon  the  same  cause  of  ac- 
tion (b). 

The  estoppel  which  enables  a  landlord  who  is  mortgagor  wiih-  I  [artcup  v. 
out  the  legal  estate  to  sue  for  rent,  is  mutual  and  renders  him  Bell. 
liable  on  the  covenants  in  the  lease  (c). 

A  marriage  settlement  contained  a  recital  that  B.  was  "seized  In  re  Horton. 
of  or  otherwise  well  entitled  to"  certain  messuages,  the  whole 
deed  showing  the  meaning  to  be  that  B.  was  entitled  in  one  shape 
or  other  to  the  fee  simple  of  all  the  property  therein  conveyed. 
The  court  held  this  a  sufficient  estoppel  as  to  the  part  of  the  prop- 
erty in  which  at  the  date  of  the  settlement  B.  had  no  interest 
whatever,  but  to  which  her  interest  accrued  subsequently  (d). 

Where  a  divisional  court  has  decided  against  an  applicant  on  Keg.  v. 
one  application,  a  divisional  court  consisting  of  other  judges  will  Lardley. 
not  overrule  or  review  that  decision  on  a  second  application  by 
him,  which,  though  technically  different  from  the  first,  raises  the 
identical  point  again  (e). 

Where  a  litigant  has  obtained  the  decision  of  the  court  on  the  Gandy  v. 
construction  of  a  deed  in  his  favour,  he  cannot  as'k  the  court  in  a  Gandy. 
subsequent  action  to  put  an  oppposite  construction  on  the  same 
deed  (/*). 

Where  a  person,  claiming  to  be  assignee  of  the  reversion,  re-  Carlton  v. 
ceives  rent  from  the  tenant  by  fraud  or  misrepresentation,  such  Bowcock. 
payment  is  no  evidence  of  title  ;  but  where  there  is  no  fraud  or 
misrepresentation,  such  payment  is  prima  facie  evidence  of  title, 
and  the  tenant  can  only  defeat  that  title  by  showing  that  he 
paid  the  rent  in  ignorance  of  the  true  state  of  the  title,  and  that 
-some  third  person  is  the  real  assignee  of  the  reversion  and  enti- 
tled to  maintain  ejectment  (g). 

(b)  Webster  v.  Armstrong,  54  T.  306  ;  33  W.  R.  803  ;  C.  A.  ; 
L.  J.  Q.  B.  236  ;  1  C.  &  E.  471,  and  see  Russell  v.  Waterford 
Mathew,  J.;  and  see  47  &  48  and  Limerick  Railway,  16  L.R. 
Vict.,c.  61,  s.  18;  Serras  v.  Noel,  Ir.  314,  Ex.  I).;  Houstoun  v. 
15  Q.  B.  D.  549;  De  Mora  v.  Marquis  of  Sligo,29  Ch.  D.  448; 
Concha,  29  Ch.  D.  268;  54  L.J.  52  L.  T.  96.— Pearson,  J. 

Ch.  532;  52  L.  T.  282,  C.  A.  32  (g)  Carlton  v.  Bowcock,  51  L. 

W.  R.  846;  49  J.  P.  548,  C  A.  T.  659,  Case,  J.;  and  see  Ashby 

(c)  Harteup  v.  Bell,  1  C.  &  E.  v.  Day,  54  L.  J.  Ch.  935;  52  L. 
19— Manistry,  J.  T.  723  ;  33  W.  R.  631,  V.  C.  B. ; 

(<l)  Horton,  In  re  Horton  v.  Herman     v.     Royal    Exchange 

l'erks,  51    L.  T.  420,  Kay,  J.;  ShippingCo.,1  C.  &E,413,Hud- 

and  see  Haymill  v.  Murphy,  12  dlestone;   B.  affirmed   inc.  A.;  4 

L.  R.  Ir.  400;  Ex.  D.  Manches-  Reg.  v.  Charnwood  Forest  Rail- 

ter  and  Oldham  Bank?'.  Cook,  way,  1  C.    &  E.  419,  Denman; 

49  L.T.  674, per  Smith, J.  Shaw  affirmed  in  C.   A.;  Barrow  Mu- 

v.  Pint  Philip  Gold  MiningCo.,  tual  Ship  Insurance  Co.  v.  Ash- 

13  Q.  B.  I).  103;  53  L.  J.  Q.  B.  burner,   54  L.   J.   Q.   B.  377,  C. 

369;50  L.  T.  615:  32  W.  R.  771  D.  A.:  Yarmouth  Exchange  Bank 

(e)  Reg.  v.  Eardley,  49  J.  P.  v.  Blethen,  10  App.  Cases,  293: 

531.  D.  51  L.  J.  Q.  C.  27:  :V.\  W.  K.801.' 

(  f)  Gandy  «.  (Jandy,   30  Ch.  P.  C. :  Thorp  v.  Dakin,  52  L.  T. 

D.  57  ;  54  L.  J.  Ch.  1154;  53  L.  856,  1). 


410  ESTOPPEL. 

We  have  thus  given  some  example  of  estoppels  of  various  kinds. 

The  law  is  said  to  be  "  favourable  to  the  utility  of  the  doctrine  of 
estoppel,  hostile  to  its  technicality."  On  the  one  hand,  persons 
must  not  he  allowed  to  mislead  others  with  impunity;  on  the 
other,  every  little  casual  remark  must  not  be  tortured  intoanat- 
tempt  to  mislead.  In  one  of  the  cases  just  referred  to  Lord  Brain- 
well  said,  "Estoppels  are  odious,  and  the  doctrine  should  never  be  ap-  i 
plied  without  a  necessity  for  it." 


411 


APPENDICES.  W 


STATUTES  IN  APPENDIX  A. 

29  Car.  II.  c.  3  (Statute  of  Frauds). 

29  Car.  II.  c.  7  (Lord's  Day  Act). 

14  Geo.  III.  c.  48  (Insurance  on  Lives). 

9  Geo.  IV.  c.  14  (Lord  Tenterden's  Act). 

11  Geo.  IV.  &  1  Will.  IV.  c.  68  (Carriers  Act). 

2  &  3  Will.  TV.  c.  71  (Prescription  Act). 

17  &  18  Vict.  c.  31  (Railway  and  Canal  Traffic  Act). 

19  &  20  Vict.  c.  97  ( Mercantile  Law  Amendment  Act). 

26  &  27  Vict.  c.  41  (Inkeepers  Act).  . 

28  &  29  Vict.  c.  86  (Partnership  Law  Amendment  Act). 

34  &  35  Vict.  c.  79  (Lodgers'  Goods  Protection  Act). 

37  &  38  Vict.  c.  62  (Infants'  Relief  Act,  1874). 

38  &  39  Vict.  c.  92  (Agricultural  Holdings  Act,  1875). 
41  &  42  Vict.  c.  31  (Bills  of  Sale  Act,  1878). 

43  &  44  Vict.  c.  42  (Employers'  Liability  Act,  1880). 

44  &  45  Vict.  c.  41  (Conveyancing  and  Law  of  Prop- 

erty Act,  1881). 

45  &  46  Vict.  c.  42  (Bills  of  Sale  Act,  1882). 

45  &  46  Vict.  c.  57  (Costs  in  County  Courts  Acts,  1 882 ) . 
45  &  46  Vict.  c.  61  (Bills  of  Exchange  Act,  lb82). 
45  &  46  Vict.  c.  75  (Married  Women's  Property  Act, 

1882). 
47  & 46  Vict.  c.  61  (Agricultural  Holdings  (England) 
Act,  1883). 

(h)  The  student  is  recommended  to  write  the  names  of  such  of 
the  hundred  and  fifty  cases  as  bear  on  the  statutes,  maxims.  &c, 
in  the  Appendices  opposite  to  the  passages  to  which  they  refer. 
The  author  would  have  done  this  himself,  only  he  thinks  he  would 
thereby  have  deprived  the  student  of  a  little  useful  and  innocent 
amusement. 


412  APPENDIX   A. 


APPENDIX  A. 


PRINCIPAL    SECTIONS   OF    PRINCIPAL    STATUTES    RE- 
FERRED TO  IN   THE   BODY  OF  THE  WORK. 


29  Car.  II.  c.  3  (1677). 

Statute  of  An  Act  for  Prevention  of  Frauds  and  Perjuries. 

Frauds. 

1.  All  leases,  estates,  interests  of  freehold,  or  terms 
of  years,  or  any  uncertain  interest  of,  in,  to,  or  out  of 
any  messuages,  manors,  lands,  tenements,  or  heredita- 
ments, made  or  created  by  livery  and  seizin  only,  or  by 
parol  and  not  put  in  writing  and  signed  by  the  parties 
so  making  or  creating  the  same,  or  their  agents  there- 
unto lawfully  authorized  by  writing,  shall  have  the  force 
and  effect  of  leases  or  estates  at  will  only. 

2.  Except  leases  not  exceeding  three  years  from  the 
making  thereof,  whereupon  the  rent  reserved  shall 
amount  to  two-thirds  at  least  of  the  full  improved  value 
of  the  thing  demised. 

4.  No  action  shall  be  brought  whereby  to  charge  any 
executor  or  administrator  upon  any  special  promise  to 
answer  damages  out  of  his  own  estate,  or  whereby  to 
charge  the  defendant  upon  any  special  promise  to  an- 
swer for  the  debt,  default,  or  miscarriages  of  another 
person;  or  to  charge  any  person  upon  any  agreement 
made  upon  consideration  of  marriage;  or  upon  any  con- 
tract or  sale  of  lands,  tenements,  or  hereditaments,  or 
any  interest  in  or  concerning  them;  or  upon  any  agree- 
ment that  is  not  to  be  performed  within  the  space  of 
one  year  from  the  making  thereof;  unless  the  agreement 
upon  which  such  action  shall  be  brought,  or  some  mem- 
orandum or  note  thereof,  shall  be  in  writing,  and  signed 
by  the  party  to  be  charged  therewith,  or  some  other  per- 
son thereunto  by  hiin  lawfully  authorised. 

17.  No  contract  for  the  sale  of  any  goods,  wares,  and 
merchandises,  for  the  price  of  ten  pounds  sterling  or 
upwards,  shall  be  allowed  to  be  good,  except  the  buyer 
shall  accept  part  of  the  goods  so  sold,  and  actually  re- 
ceive the  same,  or  give  something  in  earnest  to  bind  the 
bargain  or  in  part  of  payment,  or  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and 
signed  by  the  parties  to  be  charged  by  such  contracts, 
or  their  agents  thereunto  lawfully  authorised. 


APPENDIX    A.  413 


29  Car.  II.  c.  7  (1077). 

An  Act  for  the  Better  Observation  of  the  Lord's  Day, 
commonly  called  Sunday. 

For  the  better  observation  and  keeping  holy  the  Lord's 
Day,  commonly  called  Sunday,  be  it  enacted  .  .  . 
that  all  the  laws  enacted  and  in  force  concerning  the 
observation  of  the  Lord's  Day,  and  repairing  to  the 
church  thereon,  be  carefully  put  in  execution;  and  that 
all  and  every  person  and  persons  whatsoever  shall  on 
every  Lord's  Day  apply  themselves  to  the  observation 
of  the  same,  by  exercising  themselves  thereon  in  the 
duties  of  piety  and  true  religion,  publicly  and  privately; 
and  that  no  tradesman,  artificer,  workman,  labourer,  or 
other  person  whatsoever  shall  do  or  exercise  any  worldly 
labour,  business,  or  work  of  their  ordinary  callings 
upon  the  Lord's  Day,  or  any  part  thereof  (works  of 
necessity  and  charity  only  excepted);  and  that  every 
person,  being  of  the  age  of  fourteen  years  or  upwards, 
offending  in  the  premises  shall  for  every  such  offence 
forfeit  the  sum  of  five  shillings;  and  that  no  person  or 
persons  whatsoever  shall  publicly  cry,  shew  forth,  or 
expose  to  sale  any  wares,  merchandises,  fruit,  herbs, 
goods  or  chattels  whatsoever  upon  the  Lord's  Day,  or 
any  part  thereof,  upon  pain  that  every  person  so  offend- 
ing shall  forfeit  the  same  goods  so  cried,  or  shewed 
forth,  or  exposed  to  sale. 


14  Geo.  III.  c.  48  (1774). 

An  Act  for  regulating  Insurances  upon  Lives,  and  for 
prohibiting  all  such  Insurances  except  in  cases  where 
the  Persons  Insuring  shall  have  an  interest  in  the 
Life  or  Death  of  the  Persons  Insured. 

1.  Whereas  it  hath  been  found  by  experience  that  the 
making  insurances  on  lives  or  other  events  wherein  the 
assured  shall  have  no  interest  hath  introduced  a  mis- 
chievous kind  of  gaming:  .  .  .  be  it  enacted  .  .  . 
that,  from  and  after  the  passing  of  this  Act,  no  insur- 
ance shall  be  made  by  any  person  or  persons,bodies  poli- 
tic or  corporate,on  the  life  or  lives  of  any  person  or  per- 
sons, or  on  any  other  event  or  events  whatsoever,  wherein 

28  COMMON   LAW. 


414  APPENDIX    A. 

the  person  or  persons  for  whose  use,  benefit,  or  on  whose 
account  such  policy  or  policies  shall  be  made,  sball  have 
no  interest,  or  by  way.  of  gaming  or  wagering;  and 
that  every  assurance  made  contrary  to  the  true  intent 
and  moaning  hereof  shall  be  null  and  void  to  all  intents 
and  purposes  whatsoever. 

2.  And  be  it  further  enacted  that  it  shall  not  be  law- 
ful to  make  any  policy  or  policies  on  the  life  or  lives  of 
any  person  or  persons,  or  other  event  or  events,  with- 
out inserting  in  such  policy  or  policies  the  person  or 
persons'  name  or  names  interested  therein,  or  for  whose 
use,  benefit,  or  on  whose  account  such  policy  is  so  made 
or  underwrote. 

3.  And  be  it  further  enacted  that  in  all  cases  where 
the  insured  hath  interest  in  such  life  or  lives,  event  or 
events,  no  greater  sum  shall  be  recovered  or  received 
from  the  insurer  or  insurers  than  the  amount  or  value 
of  the  interest  of  *the  insured  in  such  life  or  lives,  or 
other  event  or  events. 


9  Geo.  IV.  c.  14  (1828). 


l^ord  Tender-  An  Act  for  rendering  a  Written  Memorandum  necessary 
to  the  Validity  of  Certain  Promises  and  Engagements. 


den's  Act. 


6.  No  action  shall  be  brought  whereby  to  charge  any 
person  upon  or  by  reason  of  any  representation  or  as- 
surance made  or  given  concerning  or  relating  to  the 
character,  conduct,  credit,  ability,  trade,  or  dealings  of 
any  other  person,  to  the  intent  or  purpose   that  such 

(a)  Sic.  other  person  may  obtain  credit,  money, or  goods  upon  (a), 

unless  such  representation  or  assurance  be  made  in  writ- 
ing, signed  by  the  party  to  be  charged  therewith. 

7.  AVhereas  it  has  been  held  that  the  said  recited  en- 
actments [viz.,  the  17th  section  of  the  Statute  of  Frauds 
and  a  similar  Irish  statute]  do  not  extend  to  certain 
executory  contracts  for  the  sale  of  goods,  which  never- 
theless are  within  the  mischief  thereby  intended  to  be 
remedied,  and  it  is  expedient  to  extend  the  said  enact- 
ments to  such  executory  contracts:  Be  it  enacted,  that 
the  said  enactments  shall  extend  to  all  contracts  for  the 
sale  of  goods  of  the  value  of  ten  pounds  sterling  and 
upwards,  notwithstanding  the  goods  may  be  intended 
to  be  delivered  at  some  future  time,  or  may  not  at  the 


APPENDIX    A.  415 

time  of  such  contract  bo  actually  made,  procured,  or 
provided,  or  lit  or  ready  for  delivery,  or  some  act  may 
be  requisite  for  the  making  or  completing  thereof,  or 
rendering  the  same  fit  for  delivery. 


11  Geo.  IV.  &  1  Will.  IV.  c.  08  (1830). 

An  Act  for  the  more  effectual  Protection  of  Mail  Con-  The  Land 
tractors,  Stage-coach  Proprietors,  and  other  Com-  Carriers  Act. 
mon  Carriers  for  Hire  against  tlie  Loss  of  or  Injury 
to  Parcels  or  Packages  delivered  to  them  for  Con- 
veyance or  Custody,  the  Value  and  Contents  of 
which  shall  not  be  delivered  to  them  by  the  Oivners 
thereof. 

1.  Whereas  by  reason  of  tho  frequent  practice  of 
bankers  and  others  of  sending  by  the  public  mails, 
stage  coaches,  waggons,  vans,  and  other  public  convey- 
ances by  land  for  hire,  parcels  and  packages  contain- 
ing money,  bills,  notes,  jewellery,  and  other  articles  of 
great  value  in  small  compass,  much  valuable  property 
is  rendered  liable  to  depredation,  and  the  responsibil- 
ity of  mail  contractors,  stage-coach  proprietors,  and 
common  carriers  for  hire  is  greatly  increased:  And 
whereas  through  the  frequent  omission  by  persons 
sending  such  parcels  and  packages  to  notify  the  value 
and  nature  of  the  contents  thereof,  so  as  to  enable  such 
mail  contractors,  stage-coach  proprietors,  and  other 
common  carriers,  by  due  diligence  to  protect  them- 
selves against  losses  arising  from  their  legal  responsi- 
bility, and  "the  difficulty  of  fixing  parties  with  know- 
ledge of  notices  published  by  such  mail  contractors, 
stage-coach  proprietors,  and  other  common  carriers, 
with  the  intent  to  limit  such,  responsibility,  they  have 
become  exposed  to  great  and  unavoidable  risks,  and 
have  thereby  sustained  heavy  losses:  Be  it  therefore 
enacted  .  .  .  that,  from  and  after  the  passing  of 
this  Act,  no  mail  contractor,  stage-coach  proprietor,  or 
other  common  carrier,  by  land  for  hire,  shall  be  liable 
for  the  loss  of  or  injury  to  any  article  or  articles  or 
property  of  the  descriptions  following — that  is  to  say, 
gold  or  silver  coin  of  this  realm  or  of  any  foreign  state, 
or  any  gold  or  silver  in  a  manufactured  or  unmanufac- 
tured state,  or  any  precious  stones,  jewellery,  watches, 
clocks,  or  time-pieces  of  any  description,  trinkets,  bills, 
notes,  or  securities  for  payment  of  money,  English  or 
foreign,  stamps,  maps,  writings,  title-deeds,  paintings, 


416 


APPENDIX    A. 


vided  that 

the  term 
"lace"  in 
this  Act  is 
not.  to  in- 
clude 
machine- 
made  lace. 


engravings,  pictures,  gold  or  silver  plate,  or  plated  arti- 
cles, glass,  china,  silks  in  a  manufactured  and  unmanu- 
factured state,  and  whether  wrought  up  or  not  wrought 
By  28  &  29  up  with  other  materials,  furs  or  lace,  or  any  of  them, 
Vict.  c.  94,  it  contained  in  any  parcel  or  package  which  shall  have 
has  been  pro-  been  delivered,  either  to  bo  carried  for  hire  or  to  accom- 
pany the  person  of  any  passenger  in  any  mail  or  stage- 
coach or  other  public  conveyance,  when  the  value  of 
such  articlo  or  articles  or  property  aforesaid  contained 
in  such  parcel  or  package  shall  exceed  the  sum  of  ten 
pounds,  unless  at  the  time  of  the  delivery  thereof  at 
the  office,  warehouse,  or  receiving  house  of  such  mail 
contractor,  stage  coach  proprietor,  or  other  common 
carrier,  or  to  his,  her,  or  their  book  keeper,  coachman, 
or  other  servant,  for  the  purpose  of  being  carried,  or  of 
accompanying  the  person  or  any  passenger  as  afore- 
said, the  value  and  nature  of  such  articlo  or  articles  of 
property  shall  have  been  declared  by  the  person  or  per- 
sons sending  or  delivering  the  same,  and  such  in- 
creased charge  as  hereinafter  mentioned,  or  an  engage- 
ment to  pay  the  same,  be  accepted  by  the  person  re- 
ceiving such  parcel  or  package. 

2.  "When  any  parcel  or  package  containing  any  of  the 
articles  above  specified  shall  be  so  delivered,  and  its 
value  and  contents  declared  as  aforesaid,  and  such  value 
shall  exceed  the  sum  of  ten  pounds,  it  shall  be  lawful  for 
such  mail  contractors,  stage-coach  proprietors,  and 
other  common  carriers,  to  demand  and  receive  an  in- 
creased rate  of  charge  to  be  notified  by  some  notice 
affixed  in  legible  characters  in  some  public  and  con- 
spicuous part  of  the  office,  warehouse,  or  other  receiv- 
ing house  where  such  parcels  or  packages  'are  received 
by  them  for  the  purpose  of  conveyance,  stating  the  in- 
creased rates  of  charge  required  to  be  paid  over  and 
above  the  ordinary  rate  of  carriage  as  a  compensation 
for  the  greater  risk  and  care  to  be  taken  for  the  safe 
conveyance  of  such  valuable  articles;  and  all  persons 
sending  or  delivering  parcels  or  packages  containing 
such  valuable  articles  as  aforesaid  at  such  office  shall 
be  bound  by  such  notice  without  further  proof  of  the 
same  having  come  to  their  knowledge. 

4.  No  public  notice  or  declaration  heretofore  made, 
or  hereafter  to  be  made,  shall  be  deemed  or  construed 
to  limit  or  in  anywise  affect  the  liability  at  common  law 
of  any  such  mail  contractors,  stage  coach  proprietors, 
or  other  public  common  carriers  as  aforesaid,  for  or 
in  respect  of  any  articles  or  goods  to  be  carried  and 


APPENDIX   A.  417 

conveyed  by  them;  but  all  and  every  such  mail  con- 
tractor, stage  coach  proprietors,  and  other  common  car- 
riers as  aforesaid,  shall  ...  be  liable,  as  at  the  com- 
mon law,  to  answer  for  the  loss  of  or  any  injury  to  any 
articles  and  goods  in  respect  whereof  they  may  not  be 
entitled  to  the  benefit  of  this  Act,  any  public  notice  or 
declaration  by  them  made  and  given  contrary  thereto, 
or  in  anywise  limiting  such  liability,  notwithstanding. 

0.  Nothing  in  this  Act  contained  shall  extend,  or  be 
construed,  to  annul,  or  in  anywise  affect,  any  special 
contract  between  such  mail  contractor,  stage-coach  pro- 
prietor, or  common  carrier,  and  any  other  parties  for 
the  conveyance  of  goods  and  merchandises. 

8.  Nothing  in  this  Act  shall  be  deemed  to  protect  any 
mail  contractor,  stage-coach  proprietor,  or  other  com- 
mon carrier  for  hire,  from  liability  to  answer  for  loss  or 
injury  to  any  goods  or  articles  whatsoever,  arising  from 
the  felonious  acts  of  any  coachman,  guard,  book-keeper, 
porter,  or  other  servant  in  his  or  their  employ,  nor  to 
protect  any  such  coachman,  guard,  book-keeper  or  other 
servant  from  liability  for  any  loss  or  injury  occasioned 
by  his  or  their  own  personal  neglect  or  misconduct. 


2&3  Will.  IV.  c.  71  (1832). 

An  Act  for  shortening  the  Time  of  Prescription  in  cer- 
tain cases. 

Whereas  the  expression  "  time  immemorial,  or  time 
whereof  the  memory  of  man  runneth  not  to  the  con- 
trary," is  now  by  the  law  of  England  in  many  cases 
considered  to  include  and  denote  the  whole  period  of 
time  from  the  reign  of  King  Richard  the  First,  whereby 
the  title  to  matters  that  have  been  long  enjoyed  is  some- 
times defeated  by  showing  the  commencement  of  such 
enjoyment,  which  is  in  many  cases  productive  of  incon- 
venience and  injustice;  for  remedy  thereof  be  it  enacted 
by  the  King's  most  Excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled, 
and  by  the  authority  of  the  same,  that  no  claim  which 
may  be  lawfully  made  at  the  common  law,  by  custom, 
prescription,  or  grant,  to  any  right  of  common  or  other 


418  APPENDIX    A. 

profit  or  benefit  to  be  taken  and  enjoyed  from  or  upon 
any  land  of  our  Sovereign  Lord  the  King,  his  heirs  or 
successors,  or  any  land  being  parcel  of  the  Duchy  of 
Lancaster  or  of  the  Duchy  of  Cornwall,  or  of  any  ec- 
clesiastical or  lay  person,  or  body  corporate,  except  such 
matters  and  things  as  areherein  specially  provided  for, 
and  except  tithes,  rent,  and  services,  shall,  where  such 
right,  profit,  or  benefit  shall  have  been  actually  taken 
and  enjoyed  by  any  person  claiming  right  thereto  with- 
out interruption  for  the  full  period  of  thirty  years,  be 
defeated  or  destroyed  by  shewing  only  that  such  right, 
profit,  or  benefit  was  first  taken  or  enjoyed  at  any  time 
prior  to  such  period  of  thirty  years,  but  nevertheless 
such  claim  may  be  defeated  in  any  other  way  by  which 
the  same  is  now  liable  to  be  defeated;  and  when  such 
right,  profit,  or  benefit  shall  have  been  so  taken  and  en- 
joyed as  aforesaid  for  the  full  period  of  sixty  years,  the 
right  thereto  shall  be  deemed  absolute  and  indefeasible, 
unless  it  shall  appear  that  the  same  was  taken  and  en- 
joyed by  some  consent  or  agreement  expressly  made  or 
given  for  that  purpose  by  deed  or  writing. 

2.  And  be  it  further  enacted,  that  no  claim  which 
may  be  lawfully  made  at  the  common  law,  by  custom, 
prescription,  or  grant,  to  any  way  or  other  easement,  or 
to  any  watercourse,  or  the  use  of  any  water,  to  be  en- 
joyed or  derived  upon,  over,  or  from  any  land  or  water 
of  our  said  Lord  the.  King,  his  heirs  or  successors,  or 
being  parcel  of  the  Duchy  of  Lancaster  or  of  the  Duchy 
of  Cornwall,  or  being  the  property  of  any  ecclesiastical 
or  lay  person,  or  body  corporate,  when  such  way  or  other 
matter  as  herein  last  before  mentioned  shall  have  been 
actually  enjoyed  by  any  person  claiming  right  thereto 
without  interruption  for  the  full  period  of  twenty  years, 
shall  be  defeated  or  destroyed  by  shewing  only  that  such 
way  or  other  matter  was  first  enjoyed  at  any  time  prior 
to  such  period  of  twenty  years,  but  nevertheless  such 
claim  may  be  defeated  in  any  other  way  by  which  the 
same  is  now  liable  to  be  defeated;  and  where  such  way 
or  other  matter  as  herein  last  before  mentioned  shall 
have  been  so  enjoyed  as  aforesaid  for  the  full  period  of 
forty  years,  the  right  thereto  shall  be  deemed  absolute 
and  indefeasible,  unless  it  shall  appear  that  the  same 
was  enjoyed  by  some  consent  or  agreement  expressly 
given  or  made  for  that  purpose  by  deed  or  writing. 

3.  And  be  it  further  enacted,  that  when  the  access  and 
use  of  light  to  and  for  any  dwelling  house,  workshop,  or 
other  building  shall  have  been  actually  enjoyed  therewith 


APPENDIX    A.  419 

for  the  full  period  of  twenty  years  without  interruption, 
the  right  thereto  shall  be  deemed  absolute  and  indefeasi- 
ble, any.  local  usage  or  custom  to  the  contrary  notwith- 
standing, unless  it  shall  appear  that  tLe  same  was  en- 
enjoyed  by  some  consent  or  agreement  expressly  made 
or  given  for  that  purpose  by  deed  or  writing. 

4.  And  be  it  further  enacted,  that  each  of  the  respec- 
tive periods  of  years  hereinbefore  mentioned  shall  be 
deemed  and  taken  to  be  the  period  next  before  some 
suit  or  action  wherein  the  claim  or  matter  to  which  such 
period  may  relate  shal]  have  been  or  shall  be  brought 
into  question,  and  that  no  Act  or  other  matter  shall  be 
deemed  to  be  an  interruption,  within  the  meaning  of 
this  statute,  unless  the  same  shall  have  been  or  shall  be 
submitted  to  or  acquiesced  in  for  one  year  after  the 
party  interrupted  shall  have  had  or  shall  have  notice 
thereof,  and  of  the  person  making  or  authorising  the 
same  to  be  made. 

G.  And  bo  it  further  enacted,  that  in  the  several  cases 
mentioned  in  and  provided  for  by  this  Act,  no  presump- 
tion shall  be  allowed  or  made  in  favour  or  support  of 
any  claim,  upon  proof  of  the  exercise  or  enjoyment  of 
the  right  or  matter  claimed  for  any  less  period  of  time 
or  number  of  years  than  for  such  period  or  numbei 
mentioned  in  this  Act  as  may  be  applicable  to  the  case 
and  to  the  nature  of  the  claim. 

7.  Provided  also,  that  the  time  during  which  any 
person  otherwise  capable  of  resisting  any  claim  to  any 
of  the  matters  before  mentioned  shall  have  been  or 
shall  be  an  infant,  idiot,  non  compos  mentis,  feme 
covert,  or  tenant  for  life,  or  during  which  any  action 
or  suit  shall  have  been  pending,  and  which  shall  have 
been  diligently  prosecuted,  until  abated  by  the  death 
of  any  party  or  parties  thereto,  shall  be  excluded  in 
the  computation  of  the  periods  hereinbefore  mention- 
ed, except  only  in  cases  where  the  right  or  claim  is 
hereby  declared  to  be  absolute  and  indefeasible. 

8.  Provided  always,  and  be  it  further  enacted,  that 
when  any  land  or  water  upon,  over,  or  from  which  any 
such  way  or  other  convenient  watercourse  or  use  of 
water  shall  have  been  or  shall  be  enjoyed  or  derived 
hath  been  or  shall  be  held  under  or  by  virtue  of  any 
term  of  life,  or  any  term  of  years  exceeding  three  years 
from  the  granting  thereof,  the  time  of  the  enjoyment 
of  any  such  way  or  other  matter  as  herein  last  before 
mentioned,  during  the  continuance  of  such  term,  shall 
be  excluded  in  the  computation  of  the  said  period  of 


420  APPENDIX    A. 

forty  years,  in  case  the  claim  shall  -within  three  years 
next  after  the  end  or  sooner  determination  of  such  term 
be  resisted  by  any  person  entitled  to  any  reversion  ex- 
pectant on  the  determination  thereof. 


[17  &  18  Vict.  c.  31  (1854).] 

An  Act  for  the  Better  Regulation  of  the  Traffic  on  Bail- 
ivays  and  Canals. 

2.  Every  railway  company,  canal  company,  and  rail- 
way and  canal  company  shall,  according  to  their  re- 
spective powers,  afford  all  reasonable  facilities  for  the 
receiving  and  forwarding  and  delivering  of  traffic  upon 
and  from  the  several  railways  and  canals  belonging  to 
or  worked  by  such  companies  respectively,  and  for  the 
return  of  carriages,  trucks,  boats,  and  other  vehicles, 
and  no  such  company  shall  make  or  give  any  undue  or 
unreasonable  preference  or  advantage  to  or  in  favour  of 
any  particular  person  or  company,  or  any  particular 
description  of  traffic  in  any  respect  whatsoever,  nor  shall 
any  such  company  subject  any  particular  person  or 
company,  or  any  particular  description  of  traffic,  to  any 
undue  or  unreasonable  prejudice  or  disadvantage  in  any 
respect  whatsoever  ;  &c. 

7.  Every  such  company  as  aforesaid  shall  be  liable 
for  the  loss  of,  or  for  any  injury  done  to  any  horses, 
cattle,  or  other  animals,  or  to  any  articles,  goods,  or 
things,in  the  receiving,forwarding,or  delivering  thereof, 
occasioned  by  the  neglect  or  default  of  such  company 
or  its  servants,  notwithstanding  any  notice,  condition, 
or  declaration  made  and  given  by  such  company  con- 
trary thereto,  or  in  anywise  limiting  such  liability  : 
every  such  notice,  condition,  or  declaration  being  hereby 
declared  to  be  null  and  void  :  Provided  always,  that 
nothing  herein  contained  shall  be  construed  to  prevent 
the  said  companies  from  making  such  conditions  with 
respect  to  the  receiving,  forwarding,  and  delivering  of 
any  of  the  said  animals,  articles,  goods,  or  things  as 
shall  be  adjudged  by  the  court  or  judge  before  whom 
any  question  relating  thereto  shall  be  tried  to  be  just 
and  reasonable  :  Provided  always,  that  no  greater  dam- 
ages shall  be  recovered  for  the  loss  of  or  for  any  injury 
done  to  any  of  such  animals  beyond  the  sums  hereinafter 


APPENDIX    A.  421 

mentioned  ;  that  is  to  say,  for  any  horse,  fifty  pounds  ; 
for  any  neat  cattle,  per  head,  fifteen  pounds  ;  for  any 
sheep  or  pigs,  per  head,  two  pounds  ;  unless  the  person 
sending  or  delivering  the  same  to  such  company  shall, 
at  the  time  of  such  delivery,  have  declared  them  to  be 
respectively  of  higher  value  than  as  above  mentioned  ; 
in  which  case  it  shall  be  lawful  f  Dr  such  company  to  de- 
mand and  receive,  by  way  of  compensation  for  the  in- 
creased risk  and  care  thereby  occasioned,  a  reasonable 
percentage  upon  the  excess  of  the  value  so  declared 
above  the  respective  sums  so  limited  as  aforesaid,  and 
which  shall  be  paid  in  addition  to  the  ordinary  rate  of 
charge;  and  such  percentage  or  increased  rate  of  charge 
shall  be  notified  in  the  manner  prescribed  in  the  statute 
11  Geo.  IV.  and  1  Will.  IV.  c.  68,  and  shall  be  binding 
upon  such  company  in  the  manner  therein  mentioned: 
Provided  also,  that  the  proof  of  the  value  of  such  ani- 
mals, articles,  goods,  and  things,  and  the  amount  of  the 
injury  done  thereto , shall  in  all  cases  lie  upon  the  per- 
son claiming  compensation  for  such  loss  or  injury : 
Provided  also,  that  no  special  contract  between  such 
company  and  any  other  parties  respecting  the  receiv- 
ing, forwarding,  or  delivering  of  any  animals,  articles, 
goods,  or  things  as  aforesaid,  shall  be  binding  upon 
or  affect  any  such  party  unless  the  same  be  signed 
by  him,  or  by  the  person  delivering  such  animals, 
articles,  goods,  or  things  respectively  for  carriage  : 
Provided  also,  that  nothing  herein  contained  shall 
alter  or  affect  the  rights,  privileges,  or  liabilities  of  any 
such  company  under  the  said  Act  of  the  11  Geo.  IV.  & 
1  Will.  IV.  c.  68  with  respect  to  articles  of  the  descrip- 
tions mentioned  in  the  said  Act. 


19  &  20  Vict.  c.  97  (1856). 

An  Act  to  amend  the  Laivs  of  England  and  Ireland  of-  Mercantile 

fecting  Trade  and  Commerce.  Law  Amend- 

ment Act. 

3.  No  special  promise  to  be  made  by  any  person  after 
the  passing  of  this  Act  to  answer  for  the  debt,  default, 
or  miscarriage  of  another  person,  being  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  by  him  thereunto  lawfully  authorised,  shall 
be  deemed  invalid  to  support  an  action,  suit,  or  other 
proceeding  to  charge  the  person  by  whom  such  promise 


4J-J  APPENDIX    A. 

shall  have  been  made,  by  reason  only  that  the  consider- 
ation for  such  promise  does  not  appear  in  writing,  or  by 
necessary  inference  from  a  written  document. 

4.  No  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  made  to  a  firm  consisting  of  two  or 
more  persons,  or  to  a  single  person  trading  under  the 
name  of  a  firm,  and  no  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  a  firm  consisting  of  two  or 
more  .persons,  or  of  a  single  person  trading  under  the 
name  of  a  firm,  shall  be  binding  on  the  person  making 
such  promise  in  respect  of  anything  done  or  omitted  to 
be  done  after  a  change  shall  have  taken  place  in  any 
one  or  more  of  the  persons  constituting  the  firm,  or  in 
the  person  trading  under  the  name  of  the  firm,  unless 
the  intention  of  the  parties,  that  such  promise  shall  con- 
tinue to  be  binding  notwithstanding  such  change,  shall 
appear  either  by  express  stipulation  or  by  necessary 
implication  from  the  nature  of  the  firm  or  otherwise. 

5.  Every  person  who,  being  surety  for  the  debt  or 
duty  of  another,  or  being  liable  with  another  for  any 
debt  or  duty,  shall  pay  such  debt  or  perform  such  duty, 
shall  be  entitled  to  have  assigned  to  him,  or  to  a  trustee 
for  him,  every  judgment,  specialty,  or  other  security 
which  shall  be  held  by  the  creditor  in  respect  of  such 
debt  or  duty,  whether  such  judgment,  specialty,  cr  other 
security  shall  or  shall  not  be  deemed  at  law  to  have  been 
satisfied  by  the  payment  of  the  debt  or  performance  of 
the  duty,  and  such  person  shall  be  entitled  to  stand  in 
the  place  of  the  creditor,  and  to  use  all  the  remedies, 
and,  if  need  be,  and  upon  a  proper  indemnity,  to  use 
the  name  of  the  creditor,  in  any  action  or  other  pro- 
ceeding, at  law  or  in  equity,  in  order  to  obtain  from  the 
principal  debtor,  or  any  co-  surety,  co- contractor,  or  co- 
debtor,  hs  the  case  may  be,  indemnification  for  the 
advances  made  and  loss  sustained  by  the  person- who 
shall  have  so  paid  such  debt  or  performed  such  duty, 
and  such  payment  or  performance  so  made  by  such 
surety  shall  not  be  pleadable  in  bar  of  any  such  action 
or  other  proceeding  by  him  ;  Provided  always,  that  no 
co-surety,  co- contractor,  or  co-debtor  shall  be  entitled  to 
recover  from  any  other  co-surety,  co-contractor  or  co- 
debtor,  by  the  means  aforesaid,  more  than  the  just  pro- 
portion to  which,  as  between  those  parties  themselves, 
such  last  mentioned  person  shall  be  justly  liable. 

6.  No  acceptance  of  any  bill  of  exchange,  whether  in- 
land or  foreign  (made  after  December  3 1st,  1856)  shall  be 
sufficient  to  bind  or  charge  any  person,  unless  the  same 


APPENDIX    A.  423 

be  in  writing  on  such  bill,  or,  if  there  be  more  than  one 
part  of  such  bill,  on  one  of  the  said  parts,  and  signed 
by  the  acceptor  or  some  person  duly  authorised  by 
him. 

7.  Every  bill  of  exchange  or  promissory  note  drawn 
or  made  in  any  part  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  the  Islands  of  Man,  Guersney, 
Jersey,  Alderney,  and  Sark,  and  the  Islands  adjacent 
to  any  of  them,  being  part  of  the  dominions  of  Her 
Majesty,  and  made  payable  in, or  drawn  upon  any  person 
resident  in,  any  part  of  the  United  Kingdom  or  islands 
shall  be  deemed  to  be  an  inland  bill. 

13.  [In  reference  to  the  provisions  of  9  Geo.  IV.  c. 
14  aud  16  &  17  Vict.  c.  113],  an  acknowledgment  or 
promise  made  or  contained  by  or  in  a  writing  signed 
by  an  agent  of  the  party  chargeable  thereby,  duly  au- 
thorised to  make  such  acknowledgment  or  promise, 
shall  have  the  same  effect  as  if  such  writing  had  been 
signed  by  such  party  himself. 

14.  [In  reference  to  the  provisions  of  21  Jac.  I.  c.  16, 
&c.  ],  when  there  shall  be  two  or  more  co- contractors  or 
co-debtors,  whether  bound  or  liable  jointly  only  or 
jointly  and  severally,  or  executors  or  administrators  of 
any  contractor,  no  such  co-contractor  or  co-debtor,  ex- 
ecutor or  administrator,  shall  lose  the  benefit  of  the 
said  enactments  or  any  of  them,  so  as  to  be  chargeable 
in  respect  or  by  reason  only  of  payment  of  any  princi- 
pal, interest,  or  other  money  by  any  other  or  others  of 
such  co -contractors  or  co-debtors,  executors  or  admin- 
istrators. 


26  &  27  Vict.  c..41  (1863). 


An  Act  to  amend  the  Law  respecting  the  Liability  of  Inn- 
keepers and  to  prevent  Certain  Frauds  upon  them. 

1.  No  innkeeper  shall  be  liable  to  make  good  to  any 

guest  of  such  innkeeper  any  loss  of  or  injury  to  goods 

or  property  brought  to  his  inn,  not  being  a  horse  or 

Other  live  animal,  or  any  gear  appertaining  thereto,  or 

any  carriage,  to  a  greater  amount  than  £30,  except — 

(1.)   Where  such  goods  or  property  shall  have  been 

stolen,  lost,  or  injured  through  the  wilful   act, 

default,  or  neglect  of  such    innkeeper  or  his 

servant. 


424  APPENDIX    A. 

(2.)  Where  the  same  shall  have  been  deposited  ex- 
pressly for  safe  custody  with  such  innkeeper. 
Provided,  that,  in  case  of  such  deposit,  the  inn- 
keeper may  require  as  a  condition  of  his  liabil- 
ity, that  such  goods  or  property  shall  be  depos- 
ited in  a  box  or  other  receptacle,  fastened  and 
sealed  by  the  person  depositing  the  same. 

2.  If  any  innkeeper  shall  refuse  to  receive  for  safe 
custody  any  goods  or  property  of  his  guest,  or  if  such 
guest  shall  through  any  default  of  such  innkeeper  be 
unable  to  deposit  the  same,  such  innkeeper  shall  not  be 
entitled  to  the  benefit  of  this  Act  in  respect  of  the 
same. 

3.  Every  innkeeper  shall  cause  at  least  one  copy  of 
6ect.  1  printed  in  plain  type  to  be  exhibited  in  a  con- 
spicuous part  of  the  hall  or  entrance  to  his  inn,  and 
shall  be  entitled  to  the  benefit  of  this  Act  in  respect  of 
such  goods  or  property  only  as  shall  be  brought  to  his 
inn  while  such  copy  shall  be  so  exhibited. 


2S  &  29  Vict.  c.  86  (1865). 
An  Act  to  amend  the  Law  of  Partnership. 

1.  The  advance  of  money  by  way  of  loan  to  a  person 
engaged,  or  about  to  engage,  in  any  trade  or  undertak- 
ing upon  a  contract  in  writing  with  such  person  that 
the  lender  shall  receive  a  rate  of  interest  varying  with 
the  profits,  or  shall  receive  a  share  of  the  profits  aris- 
ing fi'om  carrying  on  such  trade  or  undertaking,  shall 
not,  of  itself,  constitute  the  lender  a  partner  with  the 
person  or  persons,  carrying  on  such  trade  or  undertak- 
ing, or  render  him  responsible  as  such. 

2.  No  contract  for  the  remuneration  of  a  servant  or 
agent  of  any  person  engaged  in  any  trade  or  undertak- 
ing by  the  share  of  the  profits  of  such  trade  or  under- 
taking shall,  of  itself,  render  such  servant  or  agent  re- 
sponsible as  a  partner  therein,  nor  give  him  the  rights 
of  a  partner. 

3.  No  person  being  the  widow  or  child  of  the  deceas- 
ed partner  of  a  trader,  and  receiving  by  way  of  annuity 
a  portion  of  the  profits  made  by  such  trader  in  his  busi- 
ness, shall,  by  reason  only  of  such  receipt,  be  deemed 
to  be  a  partner  of,  or  to  be  subject  to,  any  liabilities 
incurred  by  such  trader. 


APPENDIX    A.  425 

4.  No  person  receiving  by  way  of  annuity  or  other- 
wise a  portion  of  the  profits  of  any  business,  in  consid- 
eration of  the  sale  by  him  of  the  goodwill  of  such  busi- 
ness, shall  by  reason  only  of  such  receipt,  be  deemed  to 
be  a  partner  of,  or  be  subject  to  the  liabilities  of  the 
person  carrying  on  such  business. 

5.  In  the  event  of  any  such  trader  as  aforesaid  being 
adjudged  a  bankrupt,  or  taking  the  benefit  of  any  Act 
for  the  relief  of  insolvent  debtors,  or  entering  into  an 
arrangement  to  pay  his  creditors  less  than  twenty  shill- 
ings in  the  pound,  or  dying  in  insolvent  circumstances, 
the  lender  of  any  such  loan  as  aforesaid  shall  not  be  en- 
titled to  recover  any  portion  of  his  principal,  or  of  the 
profits  or  interest  payable  in  respect  of  such  loan,  nor 
shall  any  such  vendor  of  a  goodwill  as  aforesaid  be  en- 
titled to  recover  any  such  profits  as  aforesaid,  until  the 
claims  of  the  other  creditors  of  the  said  trader  for  valu- 
able consideration  in  money  or  money's  worth  have  been 
satisfied. 


34  &  35  Yict.  c.  79  (1871). 

Lodgers'  Goods  Protection  Act 

1.  If  any  superior  landlord  shall  levy,  or  authorise 
to  be  levied,  a  distress  on  any  furniture,  goods  or  chat- 
tels of  any  lodger  for  arrears  of  rent  due  to  such  su- 
perior landlord  by  his  immediate  tenant,  such  lodger 
may  serve  such  superior  landlord,  or  the  bailiff  or  other 
person  employed  by  him  to  levy  such  distress,  with  a 
declaration  in  writing  made  by  such  lodger,  setting 
forth  that  such  immediate  tenant  has  no  right  of  pro- 
perty or  beneficial  interest  in  the  furniture,  goods,  or 
chattels  so  distrained  or  threatened  to  be  distrained 
upon,  and  that  such  furniture,  goods,  or  chattels  are  the 
property,  or  in  the  lawful  possession  of,  such  lodger, 
and  also  setting  forth  whether  any  and  what  rent  is  due, 
and  for  what  period,  from  such  lodger  to  his  im- 
mediate landlord;  and  such  lodger  may  pay  to  the 
superior  landlord,  or  the  bailiff  or  other  person  em- 
ployed by  him  as  aforesaid,  the  rent,  if  any,  so  due  as 
last  aforesaid,  or  so  much  thereof  as  shall  be  sufficient 
to  discharge  the  claim  of  such  superior  landlord.  And 
to  such  declaration  shall  be  annexed  a  correct  inventory, 
subscribed  by  the  lodger,  of  the  furniture,  goods  and 
chattels  referred  to  in  the  declaration. 


426  APPENDIX    A. 

2.  If  any  superior  landlord,  or  any  bailiff,  or  other 
person  employed  by  him,  shall,  after  being  served  with 
the  before-mentioned  declaration  and  inventory,  and 
after  the  lodger  shall  have  paid  or  tendered  to  such 
superior  landlord,  bailiff,  or  other  person,  the  rent,  if 
any,  which  by  the  last  preceding  section  such  lodger  is 
authorised  to  pay,  shall  levy  or  proceed  with  a  distress 
on  the  furniture,  goods,  or  chattels  of  the  lodger,  such 
superior  landlord,  bailiff,  or  other  person,  shall  be 
deemed  guilty  of  an  illegal  distress,  and  the  lodger  may 
apply  to  a  justice  of  the  peace  for  an  order  for  the 
restoration  to  him  of  such  goods;  .  .  .  and  the  superior 
landlord  shall  also  be  liable  to  an  action  at  law  at  the 
suit  of  the  lodger. 


37  &  38  Vict.  c.  62.     • 
The  Infants  Relief  Act,  1874. 

1.  All  contracts,  whether  by  specialty  or  by  simple 
contract,  henceforth  entered  into  by  infants  for  the  re- 
payment of  money  lent  or  to  be  lent,  or  for  goods  sup- 
plied or  to  be  supplied  (other  than  contracts  for  neces- 
saries), and  all  accounts  stated  with  infants,  shall  be 
absolutely  void:  Provided  always,  that  this  enactment 
shall  not  invalidate  any  contract  into  which  an  infant 
may,  by  any  existing  or  future  statute,  or  by  the  rules 
of  the  common  law  or  equity,  enter,  except  such  as  now 
by  law  are  voidable. 

2.  No  action  shall  be  brought  whereby  to  charge  any 
person  upon  any  promise  made  after  full  age  to  pay  any 
debt  contracted  during  infancy,  or  upon  any  ratification 
made  after  full  age  of  any  promise  or  contract  made 
during  infancy,  whether  there  shall  or  shall  not  be  any 
new  consideration  for  such  promise  or  ratification  after 
full  age. 


&  39  Vict.  c.  92  (1875). 


An  Act  for  amending  the  Laiv  relating  to  Agricultural 
Holdings  in  England. 

51.  Where  a  half-year's  notice,  expiring  with  a  year  of 
tenancy,  is  by  law  necessary  and  sufficient  for  determina- 


APPENDIX    A.  427 

tion  of  a  tenancy  from  year  to  year,  a  year's  notice  so  ex- 
piring shall  by  virtue  of  this  Act  be  necessary  and  suf- 
ficient for  the  same;  but  nothing  in  this  section  shall 
extend  to  a  case  where  the  tenant  is  adjudged  bankrupt, 
or  has  filed  a  petition  for  a  composition  or  arrangement 
with  his  creditors. 

53.  Where  after  the  commencement  of  this  Act  a  ten- 
ant affixes  to  his  holding  any  engine,  machinery,  or  other 
fixture  for  which  he  is  not  under  this  Act  or  otherwise 
entitled  to  compensation,  and  which  is  not  so  affixed  in 
pursuance  of  some  obligation  in  that  behalf  or  instead  of 
some  fixture  belonging  to  the  landlord,  then  such  fixture 
shall  be  the  property  of  and  be  removable  by  tho  tenant. 

Provided  as  follows: — 

( 1. )  Before   the  removal  of    any  fixture  the  tenant 
shall  pay  all  rent  owing  by  him,  and  shall  per- 
form or  satisfy  all  other  his  obligations  to  the 
landlord  in  respect  of  the  holding: 
(2.)   In  the  removal  of  any  fixture  the  tenant  shall 
not  do  any  avoidable  damage  to  any  building  or 
other  part  of  the  holding: 
(3.)   Immediately  after  the  removal  of  any  fixture  the 
tenant  shall  make  good  all  damage  occasioned 
to  any  building  or  other  part  of  the  holding  by 
the  removal: 
(4. )   The  tenant  shall  not  remove  any  fixture  without 
giving  ono  month's  previous  notice  in   writing 
to  the  landlord  of  the  intention  of  the  tenant 
to  remove  it: 
(5.)  At  any  time  before  the  expiration  of  the  notice 
of  removal,  the  landlord,  by  notice  in  writing 
given  by  him  to  the  tenant,  may  elect  to  pur- 
chase any  fixture  comprised  in  the  notice  of  re- 
moval, and  any  fixture  thus  elected  to  be  pur- 
chased shall  be  left  by  the  tenant,  and  shall  be- 
come the  property  of  the  landlord,  who  shall 
pay  the  tenant  the  fair  value  thereof  to  an  in- 
coming tenant  of  the  holding;  and  any  differ- 
ence as  to  the  value  shall  be  settled  by  a  refer- 
ence under  this  Act,  as  in  case  of  compensation 
(but  without  appeal): 
But  nothing  in  this  section  shall  apply  to  a  steam  en- 
gine erected  by  the  tenant  if,  before  erecting  it,  the  ten- 
ant has  not  given  to  the  landlord  notice  in  writing  of  his 
intention  to  do  so,  or  if  the  landlord,  by  notice  in  writing 
given  to  the  tenant,  has  objected  to  the  erection  thereof. 

54.  Nothing  in  this  Act  shall  prevent  a  landlord  and 


128  APPENDIX    A. 

tenant,  or  intending  landlord  and  tenant,  from  entering 
into  and  carrying  into  effect  any  such  agreement  as  they 
think  tit,  or  shall  interfere  with  the  operation  thereof. 
58.  Nothing  in  this  Act  shall  apply  to  a  holding  that 
is  not  either  wholly  agricultural  or  wholly  pastoral,  or 
in  part  agricultural  and  as  to  the  residue  pastoral,  or 
that  is  of  less  extent  than  two  acres. 


41  &42  Vict.  c.  31  (1878). 

An  Act  to  consolidate  and  amend  the  Law  for  prevent- 
ing FiHuds  upon  Creditors  by  Secret  Bills  of  Sale  of 
Personal  Chattels. 

11.  The  registration  of  a  bill  of  sale,  whether  exe- 
cuted before  or  after  the  commencement  of  this  Act, 
must  be  renewed  once  at  least  every  five  years,  and  if  a 
period  of  five  years  elapses  from  the  registration  or  re- 
newed registration  of  a  bill  of  sale  without  a  renewal 
or  further  renewal  (as  the  case  may  be),  the  registra- 
tion shall  become  void.  The  renewal  of  a  registration 
shall  be  effected  by  filing  with  the  registrar  an  affidavit 
stating  the  date  of  the  bill  of  sale  and  of  the  last  reg- 
istration thereof,  and  the  names,  residences,  and  occu- 
pations of  the  parties  thereto  as  therein  stated,  and  that 
the  bill  of  sale  is  still  a  subsisting  security.  ...  A 
renewal  of  registration  shall  not  become  necessary  by 
reason  only  of  a  transfer  or  assignment  of  a  bill  of  sale. 


43  &  44  Vict.  c.  42  (1880). 

An  Act  to  extend  and  regulate  the  Liability  of  Employ- 
ers to  make  Compensation  for  personal  Injuries  suf- 
fered by  Workmen  in  their  service. 

1.  Where  after  the  commencement  of  this  Act  per- 
sonal injury  is  caused  to  a  workman — 

(1.)  By  reason  of  any  defect  in  the  condition  of  the 
ways,  works,  machinery,  or  plant  connected  with 
or  used  in  the  business  of  the  employer;  or 


APPENDIX    A.  429 

(2.)  By  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  who  has  any  superintend- 
ence entrusted  to  him  whilst  in  the  exercise  of 
such  siaperintendence  ;  or 
(3. )  By  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  to  whose  orders  or  direc- 
tions the  workman  at  the  time  of  the  injury  was 
bound  to  conform,  and  did  conform,  where  such 
injury  resulted  from  his  having  so  conformed,  or  ; 
(4.)  By  reason  of  the  actor  omission  of  any  person 
in  the  service  of  the  employer  done  or  made  ,in 
obedience  to  the  rules  or  by-laws  of  the  employer, 
or  in  obedience  to  particular  instructions  given 
by  any  person  delegated  with   the  authority  of 
the  employer  in  that  behalf  ;  or 
(5. )  By  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  who  has  the  charge  or 
control  of  any  signal,  points,  locomotive  engine, 
or  train  upon  a  railway,  the  workman,  or  in  case 
the  injury  results  in  death  the  legal  personal  rep- 
resentatives of  the  workman,  and  any  persons  en- 
titled in  case  of  death,  shall  have  the  same  right 
of  compensation  and  remedies  against  the  em- 
ployers as  if  the  workman  had  not  been  a  workman 
of  nor  in  the  service  of  the  employer,  nor  en- 
gaged in  his  work. 
2.  A  workman  shall  not  be  entitled  under  this  Act  to 
any  right  of  compensation  or  remedy  against  the   em- 
ployer in  any  of  the  following  cases  ;  that  is  to  say, 
(1.)  Under  sub-section  one  of  section  one,  unless  the 
defect  therein  mentioned  arose  from  or  had  not 
been  discovered  or  remedied  owing  to  the  negli- 
gence of  the  employer,  or  of  some  person  in  the 
service  of  the  employer,  and  entrusted  by  him 
with  the  duty  of  seeing  that  the  ways,  works, 
machinery,  or  plant  were  in  proper  condition. 
(2.)  Under  sub- section  four  of  section  one,  unless  the 
injury  resulted  from  some  impropriety  or  defect 
in  the  rules,  bye-laws,  or  instructions  therein 
mentioned  ;  provided  that  where  a  rule  or  bye- 
law  has  been  approved  or  has  been  accepted  as 
a  proper  rule  or  bye-law  by  one  of  her  Majesty's 
principal  Secretaries   of  State,  or  by  the  Board 
of  Trade,  or  any  other  Department  of  the  Gov- 
ernment, under  or  by  virtue  of  any  Act  of  Par- 
liament, it  shall  not  be  deemed  for  the  purposes 
of  this  Act  to  be  an  improper  or  defective  rule 
or  bye-law. 

29  COMMON   LAW. 


430  APPENDIX    A. 

(3. )  In  any  case  where  the  workman  knew  of  the  de- 
fect or  negligence  which  caused  his  injury,  and 
failed  within  a  reasonable  time  to  give,  or  cause 
to  be  given,  information  thereof  to  the  employer 
or  some  person  superior  to  himself  in  the  ser- 
vice of  the  employer,  unless  he  was  aware  that 
the  employer,  or  such  superior  already  knew  of 
the  said  defect  or  negligence. 
4.  An  action  for  the  recovery  under  this  Act  of  com- 
pensation for  an  injury  shall  not  be  maintainable  unless 
notice  that  injury  has  been  sustained  is  given    within 
six  weeks,  and  the  action   is  commenced    within  six 
months  from  the  occurrence  of  the  accident  causing  the 
injury,  or,  in  case  of  death,  within  twelve  months  from 
the  time  of  death  :  Provided  always,  that  in   case   of 
death  the  want  of  such  notice  shall  be  no  bar  to   the 
maintenance  of  such  action  if  the  judge   shall  be  of 
opinion  that  there  was  reasonable  excuse  for  such  want 
of  notice. 

6. — (1.)  Every  action  for  recovery  of  compensation 
under  this  Act  shall  be  brought  in  a  county  court,  but 
may,  upon  the  application  of  either  plaintiff  or  defend- 
ant, be  removed  into  a  superior  court  in  like  manner 
and  upon  the  same  conditions  as  an  action  commenced 
in  a  county  court  may  by  law  be  removed. 


44  &  45  Vict.  41  (1881). 

An  Apt  for  simplying  and  improving  the  practice  of  Con- 
veyancing;  and  for  vesting  in  Trustees,  Mortga- 
gees, and  others  various  powers  commonly  conferred 
by  provisions  inserted  in  Settlements,  Mortgages, 
Wills  and  other  Instruments;  and  for  amending 
in  various  particulars  the  Law  of  Property ;  and 
for  other  purposes. 

10. — (1. )  Rent  reserved  by  a  lease,  and  the  benefit 
of  every  covenant  or  provision  therein  contained,  hav- 
ing reference  to  the  subject-matter  thereof,  and  on  the 
lessee's  part  to  be  observed  or  performed,  and  every 
condition  of  re-entry  and  other  condition  therein  con- 
tained, shall  be  annexed  and  incident  to  and  shall  go 
with  the  reversionary  estate  in  the  land,  or  in  any  part 
thereof,  immediately  expectant  on  the  term  granted  by 
the  lease,  notwithstanding  severance  of  that  reversionary 


•  APPENDIX    A.  ,  431 

estate,  and  shall  be  capable  of  being  recovered,  received, 
enforced,  and  taken  advantage  of  by  the  person  from 
time  to  time  entitled,  subject  to  the  term,  to  the  income 
of  the  whole  or  any  part,  as  the  case  may  require,  of 
the  land  leased. 

(2.)  This  section  applies  only  to  leases  mado  after 
the  commencement  of  this  Act. 

11. — (1.)  The  obligation  of  a  covenant  entered  into 
by  a  lesser  with  reference  to  the  subject-matter  of  the 
lease  shall,  if  and  as  far  as  the  lessor  has  power  to  bind 
the  reversionary  estate  immediately  expectant  on  the 
term  granted  by  the  lease,  be  annexed  and  incident  to 
and  shall  go  with  that  reversionary  estate,  or  the  sev- 
eral parts  thereof,  notwithstanding  severance  of  that 
reversionary  estate,  and  may  be  taken  advantage  of  and 
enforced  by  the  person  in  whom  the  term  is  from  time 
to  time  vested  by  conveyance,  devolution  in  law,  or 
otherwise;  and,  if  and  as  far  as  the  lessor  has  power 
to  bind  the  person  from  time  to  time  entitled  to  that 
reversionary  estate,  the  obligation  aforesaid  may  be 
taken  advantage  of  and  enforced  against  any  person  so 
entitled. 

(2.)  This  section  applies  only  to  leases  made  after 
the  commencement  of  this  Act. 

14. — (1. )  A  right  to  re-entry  or  forfeiture  under  any 
proviso  or  stipulation  in  a  lease,  for  a  breach  of  any 
covenant  or  condition  in  the  lease,  shall  not  be  enf ore- 
able,  by  action  or  otherwise,  unless  and  until  the  lessor 
serves  on  the  lessee  a  notice  specifying  the  particular 
breach  complained  of,  and  if  the  breach  is  capable  of 
remedy,  requiring  the  lessee  to  remedy  the  breach  and 
in  any  case  requiring  the  lessee  to  make  compensation  in 
money  for  the  breach,  and  the  lessee  fails,  within  a 
reasonable  time  thereafter,  to  remedy  the  breach,  if  it 
is  capable  of  remedy,  and  to  make  reasonable  compen- 
sation in  money,  to  the  satisfaction  of  the  lessoi',  for  the 
breach. 

(2. )  "Where  a  lessor  is  proceeding,  by  action  or  other- 
wise, to  enforce  such  a  right  of  re-entry  or  forfeiture, 
the  lessee  may,  in  the  lessor's  action,  if  any,  or  in  any 
action  brought  by  himself,  apply  to  the  court  for  relief  ; 
and  the  court  may  grant  or  refuse  relief  as  the  court, 
having  regard  to  the  proceedings  and  conduct  of  the 
parties  under  the  foregoing  provisions  of  this  section, 
and  to  all  the  other  circumstances,  thinks  tit  ;  and  in 
case  of  relief,  may  grant  it  on  such  terms,  if  any,  as  to 
costs,  expenses,  damages,  compensation,  penalty  or 
otherwise,  including  the  granting  of  an  injunction  to 


|.;L>  m  APPENDIX   A. 

restrain  any  like  breach  in  the  future,  as  the  court,  in 
the  circumstances  of  each  case,  thinks  tit. 

(3. )  For  the  purposes  of  this  section  a  lease  includes 
an  original  or  derivative  under-lease,  also  a  grant  at  a 
fee  farm-rent,  or  securing  a  rent  by  condition  ;  and  a 
lessee  includes  an  original  or  derivative  under-lessee,  and 
the  heirs,  executors,  administrators,  and  assigns  of  a 
lessee,  also  a  grantee  under  such  a  grant  as  aforesaid, 
his  heirs  and  assigns  ;  and  a  lessor  includes  an  original 
or  derivative  under-lessor,  and  the  heirs,  executors,  ad- 
ministrators, and  assigns  of  a  lessor,  also  a  grantor  as 
aforesaid,  and  his  heirs  and  assigns. 

(4.)  This  section  applies  although  the  proviso  or 
stipulation  under  which  the  right  of  re-entry  or  for- 
feiture accrues  is  inserted  in  the  lease  in  pursuance  of 
the  directions  of  any  Act  of  Parliament. 

(5.)  For  the  purposes  of  this  section  a  lease  limited  to 
continue  as  long  only  as  the  lessee  abstains  from  commit- 
ting a  breach  of  covenant  shall  be  and  take  effect  as  a 
lease  to  continue  for  any  longer  term  for  which  it  could 
subsist,  but  determinable  by  a  proviso  for  re-entry  on 
such  a  breach. 

(6.)  This  section  does  not  extend — ■ 
(i.)   To  a  covenant  or  condition  against  the  assign- 
ing, under-letting  parting  with  the  possession, 
or  disposing  of  the  land  leased  ;  or  to  a  condition 
for  forfeiture  on  the  bankruptcy  of  the  lessee, 
or  on  the  taking  in  execution  of  the  lessee's  in- 
terest ;  or 
(ii. )  In  case  of  a  mining  lease,  to  a  covenant  or  con- 
dition for  allowing  the  lessor  to  have  access  to 
or  inspect  books,   accounts,    records,  weighing 
machines  or  other  things,  or  to  enter  or  inspect 
the  mine  or  the  workings  thereof. 
(7. )  The  enactments  described  in  Part  I.  of  the  Sec- 
ond Schedule  to  this  Act  are  hereby  repealed. 

(8.)  This  section  shall  not  affect  the  law  relating 
to  re-entry  or  forfeiture  or  relief  in  case  of  non-payment 
of  rent. 

(9.)  This  section  applies  to  leases  made  either  before 
or  after  the  commencement  of  this  Act,  and  shall  have 
effect  notwithstanding  any  stipulation  to  the  contrary. 


APPENDIX    A.  438 


45  &4G  Vict.  c.  43  (1882). 
An  Act  to  Amend  the  Bills  of  Sale  Act,  1878. 

4.  Every  bill  of  sale  shall  have  annexed  thereto  or 
"written  thereon  a  schedule  containing  an  inventory  of 
the  personal  chattels  comprised  in  the  bill  of  sale  ;  and 
such  bill  of  sale,  save  as  hereinafter  mentioned,  shall 
have  effect  only  in  respect  of  the  personal  chattels  speci- 
fically described  in  the  said  schedule  ;  and  shall  be  void, 
except  as  against  the  grantor,  in  respect  of  any  personal 
chattels  not  so  specifically  described. 

5.  Save  as  hereinafter  mentioned,  a  bill  of  sale  shall 
be  void,  except  as  against  the  grantor,  in  respect  of  any 
personal  chattels  specifically  described  in  the  schedule 
thereto  of  which  the  grantor  was  not  the  true  owner  at 
the  time  of  the  execution  of  the  bill  of  sale. 

6.  Nothing  contained  in  the  foregoing  sections  of  this 
Act  shall  render  a  bill  of  sale  void  in  respect  of  any  of 
the  following  things  ;  (that  is  to  say), 

(1.)  Any  growing  crops  separately  assigned  or 
charged  where  such  crops  were  actually  grow- 
ing at  the  time  when  the  bill  of  sale  was  exe- 
cuted 

(2.)  Any  fixtures  separately  assigned  or  charged,  and 
any  plant  or  trade  machinery  where  such  fix- 
tures, plant,  or  trade  machinery  are  used  in, 
attached  to,  or  brought  upon  any  land,  farm, 
factory,  workshop,  shop,  house,  warehouse,  or 
other  place  in  substitutions  for  any  of  the  like 
fixtures,  plant,  or  trade  machinery  specifically 
described  in  the  schedule  to  such  bill  of  sale. 

7.  Personal  chattels  assigned  under  a  bill  of  sale  shall 
not  be  liable  to  be  seizd  or  taken  posession  of  by  the 
grantee  for  any  other  than  the  following  causes  : — 

(1.)  If  the  grantor  shall  make  default  in  payment  of 
the  sum  or  sums  of  money  thereby  secured  at 
the  time  therein  provided  for  payment,  or  in  the 
performance  of  any  covenant. or  agreement  con- 
tained in  the  bill  of  sale  and  necessary  for  main- 
taining the  security  ; 

(2.)  If  the  granter  shall  become  a  bankrupt,  or  suffer 


434  APPENDIX    A. 

the  said  goods  or  any  of  them  to  be  distrained 
for  rent,  rates,  or  taxes  ; 
(3.)  If  the  grantor  shall  fraudulently  either  remove 
or  suffer  the  said  goods,  or  any  of    them,  to  be 
removed  from  the  premises  ; 
(4.)   If  the  grantor  shall  not,  without  reasonable  ex- 
cuse, upon   demand  in  writing  by  the  grantee, 
produce  to  him  his  last  receipts  for  rent,  rates, 
and  taxes ; 
(5.)  If  execution  shall  have  been  levied  against  the 
goods  of  the  grantor   under  any  judgement  at 
law  ; 
Provided  that  the  grantor  may,  within  five  days  from  the 
seizure  or  taking  possession  of  any  chattels  on  account 
of  any   of   the  above-mentioned  causes,  apply   to  the 
High  Court,  or  to  a  judge  thereof  in  chambers,  and  such 
court  or  judge,  if  satisfied  that  by  payment  of  money  or 
otherwise  the  said  cause  of  seizure  no  longer  exists,  may 
restrain  the  grantee  from  removing  or  selling  the  said 
chattels,  or  may  make  such  other  order  as  may  seem 
just. 

8.  Every  bill  of  sale  shall  be  duly  attested,  and  shall 
be  registered  under  the  principal  Act  within  seven  clear 
days  after  the  execution  thereof,  or,  if  it  is  executed  in 
any  place  out  of  England,  then  within  seven  clear  days 
after  the  time  at  which  it  would  in  the  ordinary  course 
of  post  arrive  in  England  if  posted  immediately  after 
the  execution  thereof  ;  and  shall  truly  set  forth  the  con- 
sideration for  which  it  was  given  ;  otherwise  such  bill 
of  sale  shall  be  void  in  respect  of  the  personal  chattels 
comprised  therein. 

9.  A  bill  of  sale  made  or  given  by  way  of  security  for 
the  payment  of  money  by  the  grantor  thereof  shall  be 
void  unless  made  in  accordance  with  the  form  in  the 
schedule  to  this  Act  annexed. 

1 0.  The  execution  of  every  bill  of  sale  by  the  grantor 
shall  be  attested  by  one  or  more  credible  witness  or 
witnesses  not  being  a  party  or  parties  thereto.  So  much 
of  section  ten  of  the  principal  Act  as  requires  that  the 
execution  of  every  bill  of  sale  shall  be  attested  by  a 
solicitor  of  the  Supreme  Court,  and  that  the  attestation 
shall  state  that  before  the  execution  of  the  bill  of  sale 
the'effect  thereof  has  been  explained  to  the  grantor  by 
the  attesting  witness,  is  hereby  repealed. 

12.  Every  bill  of  sale  made  or  given  in  consideration 
of  any  sum  under  thirty  pounds  shall  be  void. 


APPENDIX    A.  435 

13.  All  personal  chattels  seized,  or  of  which  posses- 
sion is  taken  after  the  commencement  of  this  Act,  un- 
der or  by  virtue  of  any  bill  of  sale  (whether  registered 
before  or  after  the  commencement  of  this  Act),  shall 
remain  on  the  premises  where  they  were  so  seized  or  so 
taken  possession  of,  and  shall  not  be  removed  or  sold 
until  after  the  expiration  of  live  clear  days  from  the  day 
they  were  seized  or  so  taken  possession  of. 

14.  A  bill  of  sale  to  which  this  Act  applies  shall  be 
no  protection  in  respect  of  personal  chattels  included 
in  such  bill  of  sale,  which,  but  for  such  bill  Of  sale, 
would  have  been  liable  to  distress  under  a  warranty  for 
the  recovery  of  taxes  and  poor  and  other  parochial  rates. 


45  &46  Vict.  c.  57  (1882). 

An  Act  to  amend  the  law  relating  to  Costs  and  Salaries 
in  County  Courts. 

5.  Notwithstanding  any  Act  of  Parliament  or  any 
rule  to  the  contrary  it  shall  be  in  the  power  of  the  judge 
of  a  county  court  to  award  costs  on  the  higher  scale  to 
the  plaintiff  on  any  amount  recovered,  however  small, 
or  to  the  defendant  who  successfully  defends  an  action 
brought  for  any  amount,  however  small,  provided  the  said 
judge  certify  that  the  action  involved  some  novel  or 
difficult  point  of  law,  or  that  the  question  litigated  was 
of  importance  to  some  class  or  body  of  persons  or  of 
general  or  public  interest. 


45  &  46  Vict.  c.  61  (1882). 

An  Act  to  codify  the  law  relating  to  Bills  of  Exchange 
Cheques,  and  Promissory  Notes. 

22. — (1. )  Capacity  to  incur  liability  as  a  party  to  a 
bill  is  co-extensive  with  capacity  to  contract. 

Provided  that  nothing  in  this  section  shall  enable  a 
corporation  to  make  itself  liable  as  drawer,  acceptor,  or 


436  APPENDIX    A. 

indorser  of  a  bill  unless  it  is  competent  to  it  so  to  do 
under  the  law  for  the  time  being  in  force  relating  to 
corporations. 

(2.)  Where  a  bill  is  drawn  or  indorsed  by  an  infant, 
minor,  or  corporation  having  no  capacity  or  power  to 
incur  liability  on  a  bill,  the  drawing  or  indorsement 
entitles  the  holder  to  receive  payment  of  the  bill,  and  to 
force  it  against  any  other  party  thereto. 

23.  No  person  is  liable  as  drawer,  indorser,  or  acceptor 
of  a  bill  who  has  not  signed  it  as  such:    Provided  that — 

(1.)  Where  a  person  signs  a  bill  in  a  trade  or  as- 
sumed name,  he  is  liable  thereon  as  if  he  had 
signed  it  in  his  own  name  : 

(2.)  The  signature  of  the  name  of  a  firm  is  equiva- 
lent to  the  signature  by  the  person  so  signing  of 
the  names  of  all  persons  liable  as  partners  in 
that  firm. 

24.  Subject  to  the  provisions  of  this  Act,  where  a 
signature  on  a  bill  is  forged  or  placed  thereon  without 
the  authority  of  the  person  whose  signature  it  purports 
to  be,  the  forged  or  unauthorised  signature  is  wholly 
inoperative,  and  no  right  to  retain  the  bill  or  to  give  a 
discharge  therefor  or  to  enforce  payment  thereof  against 
any  party  thereto  can  be  accpuired  through  or  under  that 
signature,  unless  the  party  against  whom  it  is  sought 
to  retain  or  enforce  payment  of  the  bill  is  precluded 
from  setting  up  the  forgery  or  want  of  authority. 

Provided  that  nothing  in  this  section  shall  affect  the 
ratification  of 'an  unauthorised  signature  not  amounting 
to  a  forgery. 

25.  A  signature  by  procuration  operates  as  notice  that 
the  agent  has  but  a  limited  authority  to  sign,  and  the 
principal  is  only  bound  by  such  signature  if  the  agent 
in  so  signing  was  acting  within  the  actual  limits  of  his 
authority. 

26. — (1.)  Where  a  person  signs  a  bill  as  drawer,  in- 
dorser, or  acceptor,  and  adds  words  to  his  signature,  in- 
dicating that  he  signs  for  or  on  behalf  of  a  principal, 
or  in  a  representative  character,  he  is  not  personally  lia- 
ble thereon;  but  the  mere  addition  to  his  signature  of 
words  describing  him  as  an  agent,  or  as  filling  a  repre- 
sentative character,  does  not  exempt  him  from  personal 
liability. 

(2.)  In  determining  whether  a  signature  on  a  bill  is 
that  of  the  principal  or  that  of  the  agent  by  whose  hand 
it  is  written,  the  construction  most  favourable  to  the 
validity  of  the  instrument  shall  be  adopted. 


APPENDIX    A.  437 

53. — (1.)  A  bill  of  itself  does  not  operate  as  an  as- 
signment of  funds  in  the  hands  of  the  drawee  available 
for  the  payment  thereof,  and  the  drawee  of  a  bill  who 
does  not  accept  as  required  by  this  Act  is  not  liable  on 
the  instrument.  This  sub-section  shall  not  extend  to 
Scotland. 

(2.)  In  Scotland,  where  the  drawee  of  a  bill  has  in 
his  hands  funds  available  for  the  payment  thereof,  the 
bill  operates  as  an  assignment  of  the  sum  for  which  it 
is  drawn  in  favour  of  the  holder,  from  the  time  when 
the  bill  is  presented  to  the  drawee. 

54.  The  acceptor  of  a  bill,  by  accepting  it — 

( 1. )  Engages  that  he  will  pay  it   according   to  the 

tenor  of  his  acceptance. 
(2.)  Is  precluded  from  denying  to  a  holder  in   due 

course  . 

(a.)  The  existence  of  the  drawer,  the  genuine- 
ness of  his  signature,  and  his  capacity  and 
authority  to  draw  the  bill  ; 

(b.)  In  the  case  of  a  bill  payable  to  drawer's 
order,  the  then  capacity  of  the  drawer  to  in- 
dorse, but  not  the  genuiness  or  validity  of  his 
indorsement  ; 

(c. )  In  case  of  a  bill  payable  to  the  order  of  a 
third  person,  the  existence  of  the  payee  and 
his  then  capacity  to  indorse,  but  not  the  gen- 
uineness or  validity  of  his  indorsement. 

55.  — (1. )  The  drawer  of  a  bill  by  drawing  it — 

(a.)  Engages  that  on  due  presentment  it  shall 
be  accepted  and  paid  according  to  its  tenor, 
and  that  if  it  be  dishonoured  he  will  compen- 
sate the  holder  or  any  indorser  who  is  com- 
pelled to  pay  it,  provided  that  the  requisite 
proceedings  on  dishonor  be  duly  taken  ; 

(b.)   Is  precluded  from  denying  to  a  holder  in 
due  course  the  existence  of  the  payee  and  his 
then  capacity  to  indorse. 
(2.)  The  endorser  of  a  bill  by  endorsing  it — • 

(a.)  Engages  that  on  due  presentment  it  shall 
be  accepted  and  paid  according  to  its  tenor, 
and  that  if  it  be  dishonored  he  will  compensate 
the  holder  or  a  subsequent  indorser  who  is 
compelled  to  pay  it,  provided  that  the  requisite 
proceedings  on  dishonor  be  duly  taken  ; 

(6.)  Is  precluded  from  denying  to  a  holder  in 
due  course  the  genuineness  and  regularity  in 
all  respects  of  the  drawer's  signature  and  all 
previous  indorsements  ; 


438  APPENDIX    A. 

(c. )  Is  precluded  from  denying  to  his  immediate 
or  a  subsequent  indorsee  that  the  bill  was  at 
the  time  of  his  endorsement  a  valid  and  sub- 
sisting bill,  and  that  he  had  then  a  good  title 
thereto. 

56.  "Where  a  person  signs  a  bill  otherwise  than  as 
drawer  or  acceptor  he  thereby  incurs  the  liabilities  of 
an  indorser  to  a  holder  in  due  course. 

57.  Where  a  bill  is  dishonoured,  the  measure  of  dam- 
ages, which  shall  be  deemed  to  be  liquidated  damages, 
shall  be  as  follows  : 

(1. )  The  holder  may  recover  from  any  party  liable  on 
the  bill,  and  the  drawer  who  has  been  compelled 
to  pay  the  bill  may  recover  from  the  acceptor, 
and  an  endorser  who  has  been  compelled  to  pay 
the  bill  may  recover  from  the  acceptor  or  from 
the  drawer,  or  from  a  prior  indorser — 
(a.)   The  amount  of  the  bill  : 
(6.)  Interest  thereon  from  the  time  of  present- 
ment for  payment  if  the  bill  is  payable  on 
demand,  and  from  the  maturity  of  the  bill  in 
any  other  case  : 
(c. )   The  expenses  of  noting,  or,  when  protest  is 
necessary,  and  the  protest  has  been  extended, 
the  expenses  of  protest. 
(2.)  In  the  case  of  a  bill  which  has  been  dishonoured 
abroad,  in  lieu  of  the  above  damages  the  holder 
may  recover  from  the  drawer  or  an  endorser,and 
the  drawer  or  an  indorser  who  has  been  compell- 
ed to  pay  the  bill  may  recover  from  any  party 
liable  to  him,  the   amount  of  the  re-exchange 
with  interest  thereon  until  the  time  of  payment. 
(3.).  Where  by  this  Act  interest  may  be  recovered  as 
damages,  such  interest  may,  if  justice  require 
it,  be  withheld  wholly   or   in  part,  and  where  a 
bill  is  expressed  to  be  payable  with  interest  at  a 
given  rate,  interest  as  damages  may  or  may  not 
be  given  at  the  same  rate  as  interest  proper. 

(For  other  sections  of  this  Act,  see  pp.  2,  146,  and 
147.) 


APPENDIX   A.  439 


45  &4G  Viot.  c.  75  (1SS2). 

An  Act  to  consolidate  and  amend  the  Acts  relating  to 
the  Property  of  Married  Women. 

1. — (1.)  A  married  woman  shall,  in  accordanco  with 
the  provisions  of  this  Act,  be  capable  of  acquiring,  hold- 
ing, and  disposing  by  will  or  otherwise,  of  any  real  or 
personal  property,  as  her  separate  property,  in  the  same 
manner  as  if  she  were  a  feme  sole,  without  the  interven- 
tion of  any  trustee. 

(2.)  'A  married  woman  shall  be  capable  of  entering 
into  and  rendering  herself  liable  in  respect  of  and  to 
the  extent  of  her  separate  property  on  any  contract,  and 
of  suing  and  being  sued  either  in  contract  or  in  tort,  or 
otherwise,  in  all  respects  as  if  she  were  a  feme  sole,  and 
her  husband  need  not  be  joined  with  her  as  plaintiff  or 
defendant,  or  be  made  a  party  to  any  action  or  other 
legal  proceeding  brought  by  or  taken  against  her;  and 
any  damages  or  costs  recovered  by  her  in  any  such  ac- 
tion or  proceeding  shall  be  her  separate  property;  and 
any  damages  or  costs  recovered  against  her  in  any  such 
action  or  proceeding  shall  be  payable  out  of  her  sepa- 
rate property,  and  not  otherwise. 

( 3. )  Every  contract  entered  into  by  a  married  woman 
shall  be  deemed  to  be  a  contract  entered  into  by  her 
with  respect  to  and  to  bind  her  separate  property,  un- 
less the  contrary  be  shown. 

(4. )  Every  contract  entered  into  by  a  married  woman 
with  respect  to  and  to  bind  her  separate  property  shall 
bind  not  only  the  separate  property  which  she  is  pos- 
sessed of  or  entitled  to  at  the  date  of  the  contract,  but 
also  all  separate  property  which  she  may  thereafter 
acquire. 

(5. )  Every  married  woman  carrying  on  a  trade  sepa- 
rately froin  her  husband  shall,  in  respect  of  her  separate 
property,  be  subject  to  the  bankruptcy  laws  in  the  same 
way  as  if  she  were  a  feme  sole. 

2.  Every  woman  who  marries  after  the  commencement 
of  this  Act  shall  be  entitled  to  have  and  to  hold  as  her. 
separate  property  and  to  dispose  of  in  manner  afore- 
said all  real  and  personal  property  which  shall  belong 
to  her  at  the  time  of  marriage,  or  shall  be  acquired  by 
or  devolve  upon  her  after  marriage,  including  any 
wages,  earnings,  money,  and  property  gained  or  ac- 
quired by  her  in  any  employment,  trade  or  occupation 


440  APPENDIX   A. 

in  which  she  is  engaged,  or  which  she  carries  on  sepa- 
rately from  her  husband,  or  by  the  exercise  of  any  lit- 
erary, artistic  or  scientific  skill. 

5.  Every  woman  married  before  the  commencement 
of  this  Act  shall  be  entitled  to  have  and  to  hold  and  to 
dispose  of  in  manner  aforesaid  as  her  separate  property 
all  real  and  personal  property,  her  title  to  which,  whether 
vested  or  contingent,  and  whether  in  possession,  rever- 
sion or  remainder,  shall  accrue  after  the  commencement 
of  this  Act,  including  any  wages,  earnings,  money,  and 
property  so  gained  or  acquired  by  her  as  aforesaid. 

11.  A  married  woman  may  by  virtue  of  the  power  of 
making  contracts  hereinbefore  contained  effect  a  policy 
upon  her  own  life  or  the  life  of  her  husband  for  her 
separate  use;  and  the  same  and  all  benefit  thereof  shall 
enure  accordingly. 

A  policy  of  assurance  effected  by  any  man  on  his  own 
life,  and  expressed  to  be  for  the  benefit  of  his  wife,  or  of 
his  children,  or  of  his  wife  and  children,  or  any  of  them, 
or  by  any  woman  on  her  own  life,  and  expressed  to  be 
for  the  benefit  of  her  husband,  or  of  her  children,  or  of 
her  husband  and  children,  or  any  of  them,  shall  create 
a  trust  in  favour  of  the  objects  therein  named,  and  the 
moneys  payable  under  any  such  policy  shall  not,  so  long 
as  any  object  of  the  trust  remains  unperformed,  form 
part  of  the  estate  of  the  insured,  or  be  subject  to  his  or 
her  debts:  Provided  that  if  it  shall  be  proved  that  the 
policy  was  effected  and  the  premiums  paid  with  intent 
to  defraud  the  creditors  of  the  insured,  they  shall  be 
entitled  to  receive,  out  of  the  moneys  payable  under 
the  policy,  a  sum  equal  to  the  premiums  so  paid.  The  in- 
sured may  by  the  policy,  or  by  any  memorandum  under 
his  or  her  hand,  appoint  a  trustee  or  trustees  of  the 
moneys  payable  under  the  policy,  and  from  time  to  time 
appoint  a  new  trustee  or  new  trustees  thereof,  and  may 
make  provision  for  the  appointment  of  a  new  trustee  or 
new  trustees  thereof,  and  for  the  investment  of  the 
moneys  payable  under  any  such  policy.  In  default  of 
any  such  appointment  of  a  trustee,  such  policy,  imme- 
diately on  its  being  effected,  shall  vest  in  the  insured 
and  his  or  her  legal  personal  representatives,  in  trust 
for  the  purposes  aforesaid.  If,  at  the  time  of  the  death 
of  the  insured,  or  at  any  time  afterwards,  there  shall 
be  no  trustee,  or  it  shall  be  expedient  to  appoint  a  new 
trustee  or  new  trustees,  a  trustee  or  trustees  or  a  new  trus- 
tee or  new  trustees  may  be  appointed  by  any  court  Lav- 
ing jurisdiction  under  the  provisions  of  the  Trustee  Act, 


APPENDIX    A.  441 

1850,  or  the  Acts  amending  and  extending  the  same. 
The  receipt  of  a  trustee  or  trustees  duly  appointed,  or 
in  default  of  any  such  appointment,  or  in  default  of  no- 
tice to  the  insurance  office,  the  receipt  of  the  legal  per- 
sonal representative  of  the  insured,  shall  be  a  discharge 
to  the  office  for  the  sum  secured  by  the  policy,  or  for  the 
value  thereof,  in  whole  or  in  part. 

12.  Every  woman,  whether  married  before  or  after 
this  Act,  shall  have  in  her  own  name  against  all  persons 
whomsoever,  including  her  husband,  the  same  civil  rem- 
edies, and  also  (subject,  as  regards  her  husband,  to  the 
proviso  hereinafter  contained)  the  same  remedies  and 
redress  by  way  of  criminal  proceedings,  for  the  protec- 
tion and  security  of  her  own  separate  property,  as  if 
such  property  belonged  to  her  as  a  feme  sole  ;  but,  ex- 
cept as  aforesaid,  no  husband  or  wife  shall  be  entitled  to 
sue  the  other  for  a  tort.  In  any  indictment  or  other 
proceeding  under  this  section  it  shall  be  sufficient  to  al- 
lege such  property  to  be  her  property;  and  in  any  pro- 
ceeding under  this  section  a  husband  or  wife  shall  be 
competent  to  give  evidence  against  each  other,  any 
statute  or  rule  of  law  to  the  contrary  notwithstanding: 
Provided  always,  that  no  criminal  proceeding  shall  be 
taken  by  any  wife  against  her  husband  by  virtue  of  this 
Act  while  they  are  living  together,  as  to  or  concerning 
any  property  claimed  by  her,  nor  while  they  are  living 
apart,  as  to  or  concerning  any  act  done  by  the  husband 
while  they  were  living  together,  concerning  property 
claimed  by  the  wife,  unless  such  property  shall  have 
been  wrongfully  taken  by  the  husband  when  leaving  or 
deserting,  or  about  to  leave  or  desert,  his  wife. 

13.  A  woman  after  her  marrage  shall  continue  to  be 
liable  in  respect  and  to  the  extent  of  her  seperate  pro- 
perty for  all  debts  contracted,  and  all  contracts  entered 
into  or  wrongs  committed  by  her  before  her  marriage, 
including  any  sums  for  which  she  may  be  liable  as  a  con- 
tributory, either  before  or  after  she  has  been  placed  on 
the  list  of  contributories,  under  and  by  virtue  of  the  Acts 
relating  to  joint  stock  companies,  and  she  may  be  sued 
for  any  such  debt  and  for  any  liability  in  damages  or 
otherwise  under  any  such  contract,  or  in  respect  of 
any  such  wrong;  and  all  sums  recovered  against  her  in 
respect  thereof,  or  for  any  cost  relating  thereto,  shall  be 
payable  out  of  her  separate  property,  and  as  between  her 
and  her  husband,  unless  there  be  any  contract  between 
them  to  the  contrary,  her  separate  property  shall  be 
deemed  to  be  primarily  liable  for  all  such  debts,  con- 


442  APPENDIX   A. 

tracts,  or  wrongs,  and  for  all  damages  or  costs  recovered 
in  respect  thereof  :  Provided  always,  that  nothing  in 
this  Act  shall  operate  to  increase  or  diminish  the  lia- 
bility of  any  woman  married  before  the  commencement 
of  this  Act  for  any  such  debt,  contract,  or  wrong  as 
aforesaid,  except  as  to  any  separate  property  to  which 
she  may  become  entitled  by  virtue  of  this  Act,  and  to 
which  she  would  not  have  been  entitled  for  her  separate 
use  under  the  Acts  hereby  repealed  or  otherwise,  if  this 
Act  had  not  passed. 

14  A  husband  shall  be  liable  for  the  debts  of  his  wife 
contracted,  and  for  all  contracts  entered  into  and  wrongs 
committed  by  her,  before  marriage,  including  any  liabil- 
ities to  which  she  may  be  so  subject  under  the  Acts  re- 
lating to  joint  stock  companies  as  aforesaid,  to  the  extent 
of  all  property  whatsoever  belonging  to  his  wife  which 
he  shall  have  acquired  or  become  entitled  to  from  or 
through  his  wife, after  deducting  therefrom  any  payments 
made  by  him,  and  any  sums  for  which  judgment  may 
have  been  bond  fide  recovered  against  him  in  any  pro- 
ceeding at  law,  in  respect  of  any  such  debts,  contracts, 
or  wrongs  for  or  in  respect  of  which  his  wife  was  liable 
before  her  marriage  as  aforesaid;  but  he  shall  not  be 
liable  for  the  same  any  further  or  otherwise  ;  and  any 
court  in  which  a  husband  shall  be  sued  for  any  such 
debt  shall  have  power  to  direct  any  inquh'y  or  proceed- 
ings in  which  it  may  think  proper  for  the  purpose  of 
ascertaining  the  nature,  amount,  or  value  of  such  prop- 
erty: Provided  always,  that  nothing  in  this  Act  contain- 
ed shall  operate  to  increase  or  diminish  the  liability  of 
any  husband  married  before  the  commencment  of  this 
Act  for  or  in  respect  of  any  such  debt  or  other  liability 
of  his  wife  as  aforesaid. 

15.  A  husband  and  wife  may  be  jointly  sued  in  re- 
spect of  any  such  debt  or  other  liability  (whether  by  con- 
tract or  for  any  wrong)  contracted  or  incurred  by  the 
wife  before  marriage  as  aforesaid,  rf  the  plaintiff  in  the 
action  shall  seek  to  establish  his  claim,  either  wholly  or 
in  part,  against  both  of  them;  and  if  any  in  such  action, 
or  in  any  action  brought  in  respect  of  any  such' debt  or 
liability  against  the  husband  alone,  it  is  not  found  that 
the  husband  is  liable  in  respect  of  any  property  of  the 
wife  so  acquired  by  him  or  to  which  he  shall  have  be- 
come so  entitled  as  aforesaid,  he  shall  have  judgment 
for  his  costs  of  defence,  whatever  may  be  the  result  of 
the  action  against  the  wife  if  jointly  sued  with  him;  and 
in  any  such  action  against  husband  and  wife  jointly, 


APPENDIX    A.  443 

if  it  appears  that  tho  husband  is  liable  for  the  debt  or 
damages  recovered,  or  any  part  thereof,  the  judgment 
to  the  extent  of  tho  amount  for  which  tho  husband  is 
liable  shall  bo  a  joint  judgment  against  the  husband 
personally  and  against  the  wife  as  to  her  separate  prop- 
erty ;  and  as  to  the  residue,  if  any,  of  such  debt  and 
damages,  tho  judgment  shall  be  a  separate  judgment 
against  the  wife  as  to  her  separate  property  only. 

16.  A  wife  doing  any  act  with  respect  to  any  property 
of  her  husband,  which,  if  done  by  the  husband  with 
respect  to  property  of  the  wife,  would  make  the  husband 
liable  to  criminal  proceedings  by  the  wife  under  this 
Act,  shall  in  like  manner  be  liable  to  criminal  proceed- 
ings by  her  husband. 

22.  The  Married  Women's  Property  Act,  1870,  and 
the  Married  "Women's  Property  Act,  1870,  Amendment 
Act,  1874,  are  hereby  repealed  :  Provided,  that  such 
repeal  shall  not  affect  any  act  done  or  right  acquired 
while  either  of  such  Acts  was  in  force,  or  any  right  or 
liability  of  any  husband  or  wife,  married  before  the 
commencement  of  this  Act,  to  sue,  or  be  sued  under  the 
provisions  of  the  said  repealed  Acts  or  either  of  them, 
for  or  in  respect  of  any  debt,  contract,  wrong,  or  other 
matter  or  thing  whatsoever,  for  or  in  respect  of  which 
any  such  right  or  liability  shall  have  accrued  to  or 
against  such  husband  or  wife  before  the  commencement 
of  this  Act. 


46  &  47  Vict.  c.  61  (1883). 

An  Act  for  Amending  the  haw  relating  to  Agricultural 
Holdings  in   England. 

1.  Subject  as  in  this  Act  mentioned,  where  a  tenan 
has  made  on  his  holding  any  improvement  comprised  in 
the  First  Schedule  hereto,  he  shall,  on  and  after  the 
commencement  of  this  Act,  be  entitled,  on  quitting  his 
holding  at  the  determination  of  a  tenancy,  to  obtain 
from  the  landlord  as  compensation  under  this  Act  for 
such  improvement  such  sum  as  fairly  represents  the 
value  of  the  improvement  to  an  incoming  tenant :  Pro- 
vided always,  that  in  estimating  the  value  of  any  im- 
provement in  the  First  Schedule  hereto  there  shall  not 
be  taken  into  account  as  part  of  the  improvement  made 


444  APPENDIX    A. 

by  the  tenant  what  is  justly  due  to  the  inherent  capa- 
bilities of  the  soil. 

7.  A  tenant  claiming  compensation  under  this  Act 
shall,  two  months  at  least  before  the  determination  of 
the  tenamcy,  give  notice  in  writing  to  the  landlord  of 
his  intention  to  make  such  claim. 

Where  a  tenant  gives  such  notice,  the  landlord  may, 
before  the  determination  of  the  tenancy,  or  within  four- 
teen days  thereafter-,  give  a  counter-notice  in  writing  to 
the  tenant  of  his  intention  to  make  a  claim  in  respect  of 
any  waste  or  any  breach  of  covenant  or  other  agree- 
ment. 

Every  such  notice  and  counter- notice  shall  state,  as 
far  as  reasonably  may  be,  the  particulars  and  amount 
of  the  intended  claim. 

33.  Where  a  half-year's  notice,  expiring  with  a  year 
of  tenancy,  is  by  law  necessary  and  sufficient  for  deter- 
mination of  a  tenancy  from  year  to  year,  in  the  case  of 
any  such  tenancy  under  a  contract  of  tenancy  made 
either  before  or  after  the  commencement  of  this  Act,  a 
year's  notice  so  expiring  shall  by  virtue  of  this  Act  be 
necessary  and  sufficient  for  the  same,  unless  the  land- 
lord and  tenant  of  the  holding,  by  writing  under  their 
hands,  agree  that  this  section  shall  not  apply,  in  which 
case  a  half  year's  notice  shall  continue  to  be  sufficient ; 
but  nothing  in  this  section  shall  extend  to  a  case  where 
the  tenant  is  adjudged  bankrupt,  or  has  filed  a  petition 
for  a  composition  or  arrangement  with  his  creditors. 

34.  Where  after  the  commencement  of  this  Act  a 
tenant  affixes  to  his  holding  any  engine,  machinery, 
fencing,  or  other  fixture,  or  erects  any  building  for 
which  he  is  not  under  this  Act  or  otherwise  entitled  to 
compensation,  and  which  is  not  so  affixed  or  erected  in 
pursuance  of  some  obligation  in  that  behalf  or  instead 
of  some  fixture  or  building  belonging  to  the  landlord, 
then  such  fixture  or  building  shall  be  the  property  of 
and  be  removable  by  the  tenant  before  or  within  a 
reasonable  time  after  the  termination  of  the  tenancy. 

Provided  as  follows  : — 

(1.)  Before  the  removal  of  any  fixture  or  building 
the  tenant  shall  pay  all  rent  owing  by  him, 
and  shall  perform  or  satisfy  all  other  his  obli- 
gations to  the  landlord  in  respect  to  the  hold- 
ing : 

(2.)  In  the  removal  of  any  fixture  or  building  the 


APPENDIX    A.  44:5 

tenant  shall  not  do  any  avoidable  damage  to  any 
other  building  or  other  part  of  the  holding: 
(3.)   Immediately  after  the  removal  of  any  fixture  or 
building  the  tenant  shall  make  good  all  damage 
occasioned  to  any  other  building  or  other  part 
of  the  holding  by  the  removal: 
(4. )   The  tenant  shall  not  remove  any  fixture  or  build- 
ing without  giving  one  month's  previous  notice 
in  writing  to   the  landlord  nf   the  intention   of 
the  tenant  to  remove  it: 
(5.)   At  any  time  before  the  expiration  of  the  notice 
of  removal   the  landlord,  by  notice  in  writing 
given  by  him  to  the  tenant,  may  elect  to  pur- 
chase any  fixture  or  building  comprised  in  the 
notice  of  removal,  and  any  fixture  or  building 
thus  elected  to  be  purchased  shall  be  left  by  the 
tenant,  and   shall    become  the  property  of  the 
landlord,  who  shall  pay  the  tenant  the  fair  value 
thereof  to  an  incoming  tenant  of  the  holding; 
and  any  difference  as  to  the  value  shall  be  set- 
tled by  a  reference  under  this  Act,  as  in  case  of 
compensation  (but  without  appeal). 
44.  After  the  commencement  of  this  Act  it  shall  not 
be  lawful  for  any  landlord  entitled  to  the  rent  of  any 
holding  to  which  this  Act  applies  to  distrain  for  rent, 
which  became  due  in  respect  of  such  holding,  more  than 
one  year  before  the  making  of  such  distress,  except  in 
the  case  of  arrears  of  rent  in  respect  of  a  holding  to 
which  this  Act  applies  existing  at  the  time  of  the  pass- 
ing of  this  Act,  which  arrears  shall  be  recoverable  by 
distress  up  to  the  tirst  day  of  January,  one  thousand 
eight  hundred  and  eighty-five,  to  the  same  extent  as  if 
this  Act  had  not  passed. 

Provided  that  where  it  appears  that  according  to  the 
ordinary  course  of  dealing  between  the  landlord  and 
tenant  of  a  holding  the  payment  of  the  rent  of  such 
holding  has  been  allowed  to  be  deferred  until  the  expi- 
ration of  a  quarter  of  a  year  or  half  a  year  after  the 
date  at  which  such  rent  legally  became  due,  then  for 
the  purpose  of  this  section  the  rent  of  such  holding 
shall  be  deemed  to  have  become  due  at  the  expiration 
of  such  quarter  or  half  year  as  aforesaid,  as  the  case 
may  be,  and  not  at  the  date  at  which  it  legally  became 
due. 

.    45.   Where  live  stock  belonging  to  another  person  has 
been  taken  in  by  the  tenant  of  a  holding  to  which  this 

30    COMMON    LAW. 


446  APPENDIX    A. 

Act  applies  to  be  fed  at  a  fair  price  agreed  to  be  paid 
for  such  feeding  by  the  owner  of  such  stock  to  the  ten- 
ant, such  stock  shall  not  be  distrained  by  the  landlord 
for  rent  where  there  is  other  sufficient  distress  to  be 
found,  and  if  so  distrained  by  reason  of  other  sufficient 
distress  not  being  found,  there  shall  not  be  recovered 
by  such  distress  a  sum  exceeding  the  amount  of  the 
price  so  agreed  to  be  paid  for  the  feeding,  or  if  any  part 
of  such  price  has  been  paid  exceeding  the  amount  re- 
maining unpaid,  and  it  shall  be  lawful  for  the  owner  of 
such  stock,  at  any  time  before  it  is  sold,  to  redeem  such 
stock  by  paying  to  the  distrainer  a  sum  equal  to  such 
price  as  aforesaid,  and  any  payment  so  made  to  the  dis- 
trainer shall  be  in  full  discharge  as  against  the  tenant 
of  any  sum  of  the  like  amount  which  would  be  other- 
wise  due  from  the  owner  of  the  stock  to  the  tenant  in 
respect  of  the  price  of  feeding:  Provided  always,  that 
so  long  as  any  portion  of  such  live  stock  shall  remain 
on  the  said  holding  the  right  to  distrain  such  portion 
shall  continue  to  the  full  extent  of  the  price  originally 
agreed  to  be  paid  for  the  feeding  of  the  whole  cf  siich 
live  stock,  or  if  part  of  such  price  has  been  bond  fide 
paid  to  the  tenant  under  the  agreement,  then  to  the  full 
extent  of  the  price  then  remaining  unpaid. 

Agricultural  or  other  jnachinery  which  is  the  bond 
.  fide  property  of  a  person  other  than  the  tenant,  and  is 
on  the  premises  of  the  tenant  under  a  bond  fide  agree- 
ment with  him  for  the  hire  or  use  thereof  in  the  conduct 
of  his  business,  and  live  stock  of  all  kinds  which  is  the 
bond  fide  property  of  a  person  other  than  the  tenant, 
and  is  on  the  premises  of  the  tenant  solely  for  breed- 
ing purposes,  shall  not  be  distrained  for  rent  in  arrear. 

46.  Where  any  dispute  arises — 

(a)  In  respect  of  any  distress  having  been  levied 
contrary  to  the  provisions  of  this  Act;  or 

(b)  As  to  the  ownership  of  any  live  stock  distrained, 
or  as  to  the  price  to  be.  paid  for  the  feeding  of 
such  stock;  or 

(c)  As  to  any  other  matter  or  thing  relating  to  a 
distress  on  a  holding  to  which  this  Act  applies: 

such  dispute  may  be  heard  and  determined  by  the  county 
court  or  by  a  court  of  summary  jurisdiction,  and  any 
such  county  court  or  court  of  summary  jurisdiction  may 
make  an  order  for  restoration  of  any  live  stock  or  things 
unlawfully  distrained  or  may  declare  the  price  agreed 
to  be  paid  in  the  case  where  the  price  of  the  feeding  is 
required  to  be  ascertained,  or  may  make  any  other  or- 


APPENDIX    A.  447 

der  which  justice  requires:  any  such  dispute  as  men- 
tioned in  this  section  shall  be  deemed  to  be  a  matter  in 
which  a  court  of  summary  jurisdiction  has  authority  by 
law  to  make  an  order  on  complaint  in  pursuance  of  the 
Summary  Jurisdiction  Acts;  but  any  person  aggrieved 
by  any  decision  of  such  court  of  summary  jurisdiction 
under  this  section  may,  on  giving  such  security  to  the 
other  party  as  the  court  may  think  just,  appeal  to  a 
court  of  general  or  quarter  sessions. 

54.  Nothing  in  this  Act  shall  apply  to  a  holding 
that  is  not  either  wholly  agricultural  or  wholly  pastoral, 
or  in  part  agricultural,  and  as  to  the  residue  pastoral, 
or  in  whole  or  in  part  cultivated  as  a  market  garden, or 
to  any  holding  let  to  the  tenant  during  his  continriance 
in  any  office,  appointment,  or  employment  held  under 
the  landlord. 

55.  Any  contract,  agreement,  or  covenant  made  by  a 
tenant,  by  virtue  of  which  he  is  deprived  of  his  right 
to  claim  compensation  under  this  Act  in  respect  of  any 
improvement  mentioned  in  the  First  Schedule  hereto 
(except  an  agreement  providing  such  compensation  as 
is  by  this  Act  permitted  to  be  substituted  for  compen- 
sation under  this  Act),  shall,  so  far  as  it  deprives  him 
of  such  right,  be  void  both  at  law  and  in  equity. 

50.  Where  an  incoming  tenant  has,  with  the  consent 
in  writing  of  his  landlord,  paid  to  an  outgoing  tenant 
any  compensation  payable  under  or  in  pursuance  of 
this  Act  in  respect  of  the  whole  or  part  of  any  improve- 
ment, such  incoming  tenant  shall  be  entitled  on  quitting 
the  holding  to  claim  compensation  in  respect  of  such 
improvement  or  part  in  like  manner,  if  at  all,  as  the 
outgoing  tenant  would  have  been  entitled  if  he  had  re- 
mained tenant  of  the  holding,  and  quitted  the  holding 
at  the  time  at  which  the  incoming  tenant  quits  the 
same. 


448  APPENDIX   B. 


APPENDIX  B. 
EQUITY  AND  CONVEYANCING  LEADING  CASES. 

1.  Strathmore  v.  Bowes. — Conveyance  by  wife,  even  the  mo- 

ment before  marriage,  prima  facie  good,  and  becomes  bad 
only  on  imputation  of  fraud. 

2.  Elibank  v.  Montolieu. — Married  woman  may  come  into 

court  as  plaintiff  for  equity  of  settlement. 

3.  Murray  v.  Elibank. — If  married  women  dies  after  decree 

directing  settlement  obtained,  children  entitled  to  benefit. 

4.  Hulme  v.  Tenant. — Bond  entered   into  by   husband   and 

wife  jointly  binds  wife's  separate  estate. 

5.  Huntingdon  v.    Huntingdon. — When    wife  joins  with 

husband  in  mortgage  of  her  estate  of  inheritance  for  his 
benefit,  estate  is  considered  surety  only. 

6.  Tullett  v.  Armstrong. — Separate  use  clause  and  restraint 

on  anticipation  attach  on  subsequt  nt  marriage. 

7.  Legg  v.  Goldwire. — In  case  of  variance  between  marriage 

articles  made  before  marriage  and  settlement  made  after, 
articles  will  prevail;  but  settlement  generally  when  both 
have  been  made  before. 

8.  Hornsby  y.  Lee. — Leading  case  as  to  what  is  sufficient  re- 

duction into  possession  of  wife's  choses  in  action. 

The  gist  of  the  Married  Women's  Property  Act,  1882  (45  &  46  Viet.  c.  75), 
is,  as  regards  her  real  or  personal  property,  the  abolition  of  the  jus  maritale.  A 
wife,  unless  restrained  from  anticipating,  is  as  a  single  woman  when  dealing 
with  her  estate;  but  even  now  she  may  be  restrained,  for  purposes  of  protection, 
from  anticipating  her  fortune;  though  if  a  Court  of  Equity  think  it  would  be  for 


APPENDIX    B.  449 

her  benefit  the  restrain!  may  be  removed  (44  &  45  Vict.  c.  41,  s.39).  The  new  Act 
would  seem  to  render  suits  grounded  on  fraud  or  marital  rights  (Strathmore  v. 
Bowes,  &C.  I  impossible  lor  a  man  cannot  be  defrauded  of  that  to  which  he  is  not 
entitled.  So,too,  suits  by  the  wife  claiming  an  equity  to  a  settlement  i  Elibank  v, 
Montolieu,&c.)  will  be  unnecessary,  for  on  property  devolving  on  her  from  any 
source,  she  becomes  by  law  entitled  to  the  whole.  Settlements,  broadly  speak- 
ing, remain  unaffected  by  the  Act.     See  Wcnman  v.   Ash,  p.  362. 

f  Equity  will  decree  specific  de- 


9.  Pusey  v.  Pusey. 
10.   Somerset  v.  Cookson. 


livery  up  of  chattels  (e.g.,  his- 
toric horus  or  ancient  altar- 
pieces  )  when  damages  would 
I  be  no  compensation. 
But  where  an  artist  sought  restitution  of  a  picture  he  bad  painted  himself, 
and  it  appeared  that  he  had  in  effect  put  a  fixed  price  upon  it,  it  was  held  that 
damages  would  be  an  adequate  remedy.  Dowlingv.  Betjeman,  2  J.  &  H.  544. 
See  Wood  v.  Rowcliffe,  3  Hare,  304  ;  Fells  v.  Read,  3  Ves.  70  ;  and  Macclesfield 
v.  Davis,  2  V.  &  B.  1G  ;  also  17  &  18  Vict.  c.  125,  s.  78,  and  Order  49  of  Judica- 
ture Act  Rules. 

11.  Cuddee  v.  Rutter. — Equity  will  not  decree  specific  perform- 

ance of  agreement   to  transfer  South  Sea  stock,  since  dam- 
ages would  afford  sufficient  compensation. 

12.  Seton  v.    Slade. — Equity   will    decree   specific  performance 

against  vendee,  though   vendor  has   not   made   title  within 
time  agreed. 

Equity  will  not  decree  specific  performance  of  agreement  illegal  or  without 
consideration,  nor  of  contracts  for  personal  services,  nor  of  contracts  to  build  or 
repair.  See  Lumley  v.  Wagner,  5  De  G.  &  Sm.  485  ;  Jefferys  v.  Jefferys,  Cr. 
&  1'h.  141  ;  and  Emington  v.  Aynsley,  2  Bro.  C.  C.  343. 

13.  Lester  v.  Foxcroft. — Specific  performance  of  a  parol  agree- 

ment to  grant  a  lease  decreed,  notwithstanding  the  Statute  of 
Frauds,  after   acts  of   part  performances  on  the  part  of   the 
lessee  by  pulling  down  an  old  house  and  building  new  houses 
according  to  the  terms  of  the  agreement 
See  Boi/deU  v.  Drummond,  p.  32. 

14.  Woollam   v.    Hearn. — Plaintiff  cannot  go  into  parol  evi- 

dence to  get  specific  performance  of  contract  with  variation  ; 
but  defendant  resisting  specific  performance  may  so  show 
that  by  fraud,  accident,  or  mistake  written  agreement  does 
not  express  real  terms. 
See  Martyn  v.  Pycroft.  2  He  G.  M.  &  G.  785  ;  Parker  v.  Taswell,  2  De  G.  & 
Jo.  559  ;  Townshend  v.  Stangroom,  0  Ves.  328. 


450  APPENDIX    B. 

15.  Penn  v.  Baltimore.  —  Equity  acts  in  personam,  and, if  parties 
are  here,  will  decree  specific  performance  of  contract  relating 
to  property  abroad. 

See  Scott  v.  Nesbitt,  J  4  Ves.  438;  Cranstown  v.  Johnston,  3  Ves.  170  ;  Rober- 
dean  v.  Rous,  1  Atk.  543  ;  and  Fabrigas  v.  Mostyn,  p.  384.  Where  the  lands 
are  out  of  the  jurisdiction,  though  in  a  colony,  the  Court  of  Chancery  cannot 
affect  them  otherwise  than  by  proceedings  in  personam. 

16  Pawlett  v.  Pawlett. — When  child  intended  to   be  benefited 

dies,  portion  will  not  be  raised  ;   legacy  will. 

See  King  v.  Withers,  3  P.  Wins.  414  ;  Godwin  v.  Munday,  1  Bro.  Ch.  Ca. 
191  ;  (Jawler  v.  Standewicke,  1  Bro.  C.  C.  106  ;  and  Smith  v.  Smith,  2  Vern.  92. 

Cases  laying  down  rules  to  tell 
whether  devise  or  bequest  is 
vested  or  contingent^. (/., word 


17.  Boraston's  case. 


18.  Stapleton  v.  Cheales.         i       "ivhen"  in -will  standing  alone 

19.  Hanson  v.  Graham.  is  conditional,bnt  may  be  con- 
trolled by  context,  &c,  so  as 
to  postpone  payment  only. 

A  bequest  to  a  person  payable  or  to  be  paid  at  or  when  he  shall  attain  twenty- 
one  years  of  age,  or  at  the  end  of  any  other  certain  determinate  term,  confers 
on  him  a  vested  interest  immediately  on  the  testator's  death,  as  debitum  in 
praesenti,  solvendum  in  futuro,  and  transmissible  to  his  executors  or  administra- 
tors, unless,  indeed,  it  clearly  appears  to  have  been  the  testator's  intention  that 
the  time  of  payment  should  be  the  time  of  vesting.  See  Sydney  I'.Vaughan,  2 
Bro.  Pari.  Ca.  254  ;  Jackson  v.  Jackson,  1  Ves.  sen.  217  ;  Bolger  v.  Mackell,  5 
Ves.  509  ;  and  Atkins  v.  Hiscocks,  1  Atk.  500. 

20.  Hooley  v.  Hatton. — If    testator  gives  a  person  a  legacy  of 

£500  by  will,  and  afterwards  of    £1000  by    codicil,  person 
takes  both. 

But  legacies  of  equal  amount  given  by  the  same  instrument  are  merely  repeti- 
tions. Parol  evidence,  however,  would  be  admissible  to  show  that  the  testator 
meant  the  legatee  to  have  both  legacies.  The  same  specific  thing  cannot  be 
given  twice.  Gifts  by  different  instruments  of  the  same  amount,  and  expressed 
to  be  given  from  the  same  motive,  are  substitutional.  See  Hunt  v.  Beach,  5  Madd. 
351  :  Guy  v.  Sharp,  1  M.  &  K.  589  ;  Benyon  v.  Benyon,  17  Ves.  34  ;  and  Os- 
borne  v.  Duke  of  Leeds,  5  Ves.  369. 

21.  Ashburner   v.   Macguire. — Specific    legacy  is    liable    to 

ademption  by  act  of    testator   in  his  lifetime,  but  does  not 
abate. 


APPENDIX    B.  451 

A  specific  legacy  is  adeemed  if  it  is  converted  by  the  testator  into  something 
else,  or  perishes  by  viamajor.  But  a  direction  to  sell  notcarried  out  till  aftei  the 
testator's  death  will  not  be  an  ademption.  Nor  is  the  removal  of  furniture  for 
a  merely  temporary  purpose.  See  Norreys  v.  Franks,  L.  R.  9  Eq.  18;  Harri- 
son v.  Asher,  2  De  G.  &  S.  436  ;  Durrant  v.  Friend,  5  De  G.  &  S.  343  ;  and  Jen- 
kins v.  Jones,  L.  K.  2  Eq.  3:23. 

22.  Elliott   v.   Davenport. — If  legatee  dies;  in  testator's  life- 

time, legacy  lapses,  although  given  to  the  legatee,  his  execu- 
tors, administrators,  and  assigns. 

And  a  mere  negative  provision  to  the  effect  that  a  lapse  shall  not  take  place  by 
the  predecease  of  the  legatee,  is  not  sufficient  to  prevent  lapse,  unless  it  is  clear 
that  the  legacy  is  to  go  to  the  estate  of  the  legatee  in  the  event  of  his  death. 
See  Pickering  v.  Stamford,  3  Ves.  493  ;  Maybank  v.  Brooks,  1  B.  C.  C.  84  ;  and 
Page  v.  Page,  2  P.  Wms.  489. 

23.  Viner  v.  Francis. — If  testator  gives  £2000  to  the  children 

of  his  deceased  sister,  he  means  those  living  at  his  death. 

In  the  case  of  gifts  to  a  class  as  tenants*  in  common,  the  shares  of  members 
of  the  class  dying  hefore  the  testator  do  not  lapse,  but  go  to  the  other  members 
of  the  class. 

24.  Leventhorpe  v.  Ashbie. — Bequest  of  personalty  in  such 

terms  as  would  have  given  estate  tail  in  devise  of  realty  gives 
absolute  interest. 

So  a  bequest  of  personalty  to  a  man  and  his  heirs  would  pass  the  absolute  in- 
terest.    See  Doncaster  v.  Doncaster,  3  Kay  &  J.  26. 

25.  Corbyn  v.  French. — Legacy  of  £500  to  trustees  of  chapel 

to  discharge  mortgage  on  chapel,  void  under  Mortmain  Act. 

The  Mortmain  Act  (9  Geo.  II.  c.  36)  in  effect  prevents  testators  from  leaving 
their  lands  to  charities.  If  a  man  wants  to  dispose  of  his  lands  in  that  way,  he 
must  do  it  by  deed  executed  twelve  months  before  his  death,  and  enrolled  in 
Chancery  within  six  months.  Exceptions,  howevei,  exist  in  favour  of  the  uni- 
versities, the  colleges^(or  schools)  of  Eton,  Winch  ester,  and  Westminster,  sites  for 
schools  or  for  places  of  religious  worship,  literary  and  scientific  institutions, 
public  parks,  &c.  The  Act  has  been  so  strictly  construed  as  to  prohibit  the 
bequest  for  charitable  purposes  of  personal  estate  in  any  degree  savouring  of 
the  realty.  See  24  Vict.  c.  9  ;  27  Vict.  c.  13  :  33  &  34  Viet.  c.  34  :  31  Vict,  c 
13  :  35  &  36  Vict.  c.  24  ;  and  the  recent  case  of  Jervis  v.  Lawrence,  17  L.  T., 
N.  S.  428. 

26.  Scott    v.    Tyler. — Conditions    annexed    to     legacies,    &c, 

operating  unduly  in  restraint  of  marriage  null  and  void. 

See  Loire  v.  Peers,  p.  133. 


452  APPENDIX    15. 

27.  Howe  v.  Dartmouth. — Where  testator  intended  successive 

interests  which  cannot  otherwise  take  effect,  conversion  into 
permanent  securities  bearing  interests. 
But  their  will  be  no  such  conversion  it"  it  appears  from  the  will  that  the  tes- 
tator's intention  was  that  the  property  should  be  enjoyed  in  specie. 

28.  Forth  v.  Chapman. — Words  "  without  leaving  issue,"  when 

realty  is  concerned,  mean  general  failure  of  issue  ;  when  per- 
sonalty, failure  of  issue  at  death. 
See  7  Will.  IV.  &  1  Vict.  c.  26,  s.  29. 

29.  Braybroke  v.  Inskip. — Trust  estate  prima  facie  passes  by- 

general  devise. 
The  .'50th  section  of  the  1831  Conveyancing  Act  (44  &  45  Vict.    c.  41),  how- 
ever, provides  for  the  devolution  of  trust  and  mortgage  estates  on  death  to  per- 
sonal representatives  like  chattels  real. 

30.  Gardner  v.  Sheldon. — Devise  to  Jones  after  death  of  Brown 

gives  Brown  estate  for  life  by  implication,  if  Jones  is  heir- 
at-law  of  testator  ;  otherwise,  no  estate. 
An  heir-at-law  cannot  he  disinherited  except  by  necessary  implication. 

31.  "Wild's  case. — Devise  to  person  and  his  children  gives  estate 

tail  if  he  has  no  children  at  time  of  devise. 
The  rule  does  not  apply  to  personalty.     Audsley  v.  Horn,  26  B.  195.     It  ap- 
plies, however,  though  the  testator  may  expressly  give  the  parent  a  power  of 
appointing  the  property  among  his  children.     See  Clifford  v.   Koe,  5  App.  Ca. 
447.  and  Re  P.iickmaster's  Estate,  47  L.  T.,  N.  S.  514. 

32.  Harding  v.  Glyn. — Words  expressing  testator's  icish  or  de- 

sire constitute  trust. 

But  words  of  recommendation  used  must  he  such  that  upon  the  whole  they 
ought  to  be  construed  as  imperative. 

33.  Eyre    v.   Shaftesbury. — Guardianship  given  by    will    to 

three  persons  devolves  on  survivor,  although  no  words  in  will 

expressly  saying  so. 
12  Car.  II.  c.  24.  gives  a  father  power  to  appoint  a  guardian  either  by  deed 
or  will,  and  the  right  of  this  guardian  will  prevail  over  that  of  all  other  guar- 
dians, since  he  stands  in  the  father's  place.  36  Vict.  c.  12,  enables  the  Court 
of  Chancery  to  order  that  a  mother  shall  have  access  to,  and  the  custody  of,  her 
children  onder  sixteen.  See  the  Agar  Ellis  case,  10  Ch.  D.  49  ;  In  re  Taylor.  4 
Ch.  I).  1">7:  /<*  re  Goldsworfhy,  2  Q.  B.  I).  75:  Hawksworth  w.  Hawksworth, 
6  CI.  539  :  and  In  re  Clarke,  31  W.  R.  37.  It  may  be  added  that  the  father,  if 
underage,  cannot  now  appoint  a  guardian  by  will,  for  theWills  Act  (7  Will.  IV  & 
1  Viet.  c.  26)  enacts  that  no  will  made  by  any  person  under  twenty-one  shall 
be  valid. 


APPENDIX    B. 


453 


34.  Cadell  v.  Palmer. — Limitation  by  way  of  executory  devise, 

not  to  take  effect  till  after  determination  of  life  or  lives  in 
being,  and  term  of  twenty -one  years  as  term  in  gross,  and 
without  reference  to  infancy  of  any  person,  valid;  further 
period  allowed  for  gestation,  where  it  actually  exists. 

35.  Griffiths  v.  Vere. — Trust  by  will  for  accumulation  during  a 

life  contrary  to   Thellusson  Act,  good  for  twenty-one  years. 

The  Thellusson  Act  (39  &  40  <$eo.  III.  c.  98)  says,  in  effect,  that  no  accumu- 
lation of  income  shall  take  place  for  longer  than  the  lives  of  the  grantors,  or 
twenty-one  years  from  the  death  of  the  grantors,  or  during  the  minority  of  per- 
sons living  at  the  death  of  the  grantors,  or  during  the  minority  only  of  any 
person  who  under  the  settlement  or  will  would  for  the  time, being,  if  of  full 
age,  be  entitled  to  the  income  so  directed  to  be  accumulated.  The  Act.  how- 
ever, is  not  to  apply  to  provisions  for  payment  of  debts,  portions  for  children, 
or  produce  of  timber.  This  Act,  it  may  be  mentioned,  "  was  occasioned  by  the 
extraordinary  will  of  the  late  Mr.  Thellusson,  who  directed  the  income  of  his 
property  to  be  accumulated  during  the  lives  of  all  his  children,  grandchildren, 
and  great  grandchildren  who  were  living  at  the  time  of  his  death,  for  the  benefit 
of  some  future  descendants  to  be  living  at  the  decease  of  the  survivor;  thus 
keeping  strictly  within  the  rule  which  allowed  any  number  of  existing  lives 
to  be  taken  as  the  period  for  an  executory  interest"  (i). 


36.  Talbot  v.  Shrewsbury. 

37.  Chancey's  case. 


Request  by  debtor  to  creditor  of 
sum  equal  to  or  greater  than 
debt,  a  satisfaction;  other- 
wise, if  sum  bequeathed  less 
than  debt,  or  there  is  express 
direction  in  will  for  payment 
of  debts  and  legacies. 


Satisfaction  may  be  defined  to  be  the  making  of  a  donation  with  the  express 
or  implied  intention  that  it  shall  be  taken  as  an  extinguishment  of  some  claim 
which  the  donee  has  upon  the  donor.  The  intention  of  the  donor  is  the  prin- 
cipal thing  to  be  considered.  •  In  Chancey's  case  (1  P.  Wins.  408)  just  referred 
to,  a  man  who  was  indebted  to  his  maid-servant  for  wages  to  the  amount  of 
£100  gave  her  a  bond  for  that  sum.  Afterwards,  by  will,  lie  gave  her  £."">00  for 
her  long  and  faithful  services,  and  directed  "that  all  his  debts  and  legacies 
should  be  paid."  It  was  held  that  the  legacy  was  not  a  satisfaction  tor  the 
debt  due  on  the  bond,  and  that  the  maid-servant  was  entitled  to  be  paid  both. 


(j)  Wms.  R.  P.,  loth  ed.,  p.  372. 


454 


APPENDIX    B. 


39.  Noys  r.  Mordaunt. 

40.  Streatfield  v.  Streatfield. 

41.  Brodie  v.  Barrie. 

42.  Cooper  v.  Cooper. 


38.  Ex  parte  Pye. — Court  leans  against  double  portions,  and 
therefore  if  parent,  after  giving  legacy  to  child,  advances 
portion  on  marriage,  a  satisfaction. 

The  cases  on  the  doctrine  of  satisfaction  have  heen  divided  into  four  classes, 
viz : — 

]      The  satisfaction  of  debts  by  legacies. 
:  .'.      The  satisfaction  of  legacies  by  subsequent  legacies. 
3.     The  satisfaction  of  legacies  by  portions. 
I      The  satisfaction  of  portions  by  legacies. 
See  Warren  v.  "Warren,  1  B.  C.  C.  305;  Lire    Tussaud's  Estate,  9  Ch.  D.  363; 
Dowse  v.  Glass,  50  L.  J.  Ch.  285;  and  Atkinsop  v.  Littlewood,  18  Eq.  5D5.     In 
the  case  of  double  provisions,  the  doctrine  .of  satisfaction  does  not  in  general 
apply  to  legacies  and  portions  to  strangers,  but  only  where  the  parental  rela- 
tion, or  its  equivalent,  exists. 

Leading  cases  on  Election, 
which  is  "the  choosing  be- 
tween two  rights  by  a  per 
son  who  derives  one  of  them 
under  an  instrument  in 
which  a  clear  intention  ap- 
pears that  he  should  not  en- 
joy both." 

"Noys  r.  Mordaunt  and  Streatfield  v.  Streatfield,"  it  is  said  in  White  and 
Tudor  s  Equity  Leading  cases,  4th  ed.,  p.  341,  "are  printed  together,  since  they 
are  usually  cited  as  having  conclusively  established  the  doctrine  of  election, 
which  is  founded  upon  the  principle  that  there  is  an  implied  condition  that  he 
who  accepts  a  benefit  under  an  instrument  must  adopt  the  whole  of  it,  con- 
forming with  all  its  provisions,  and  renouncing  every  right  inconsistent  with  it.'' 

Leading  cases  on  Performance, 
which  proceeds  on  the  princi- 
ple that  "where  a  person  cove- 
nants to  do  an  act,  and  he  does 
that  which  may  either  wholly  or 
partially  be  converted  to  or  to- 
wards a  completion  of  the  cov- 
enant, he  shall  be  presumed  to 
have  done  it  with  that  inten- 
tion.'' 

"Equity  will  impute  an  intention  to  fulfil  an  obligation."  The  distinction 
between  Satisfaction  and  P<  rformanee  is  that  in  the  former  case  there  is  a  sub- 
stitution of  something  different,  while  in  the  latter  the  thing  agreed  to  be  done 
is  in  truth  wholly  or  in  part  performed. 


43.  Wilcocks  v.  Wilcocks. 

44.  Blandy  v.  Widmore. 


APPENDIX    B.  455 

45.  Hiscocks  v.  Hiscocks. — Parol  evidence  sometimes  admis- 

ibie  to  rectify  mistake  in  will. 

See  p.  :>(>.  Where  a  will  shown  not  to  have  been  revoked  cannot  be  found 
at  the  testator's  death,  evidence  may  be  given  to  prove  its  contents.  See 
Sugden  v.  Lord  St.  Leonards,  1  P.  D.  154. 

46.  "Ward.  v.  Turner. — Delivery  necessary  to  donations  mortis 

causa;  but  the  delivery  of   receipts  for  South  Sea  Annuities 
is  not  sufficient,  though  strong  evidence  of  the  intent. 
See  Irons  v.  Smallpiece,  p.  373. 

47.  Silk    v.    Prime. — Lands    charged    with   payment  of    debts, 

equitable    assets,  and   distributable  amongst  creditors  pari 
passu. 
The  doctrine  of  equitable  assets,  however,  has  lost  its   former    importance. 
See  32  &  33  Vict.  c.  46. 

48.  Ancaster    V.    Mayer. — General   personal    estate  primarily 

liable  for  payment  of  debts. 
"But  of  course  the  testator  may  have  exonerated  it  from  its  primary 
liability,  and  such  exoneration  may  be  either  express  or  implied.  Thus,  if  the 
testator  has  appropriated  any  specific  part  of  his  personal  estate  for  the  pay- 
ment of  his  debts,  and  has  also  disposed  of  his  general  residuary  personal  (state, 
the  part  so  appropriated  will  be  primarily  liable  to  the  payment  of  the  debts 
in  exoneration  of  the  general  residuary  estate.  It  requires,  however,  very  clear 
language  on  the  part  of  the  testator  to  exonerate  his  general  personal  estate 
from  its  primary  liability  to  the  payment  of  his  debts;  and  to  do  this  at  the 
expense  of  the  real  estate,  he  must  show  an  intention  not  only  to  charge  lii> 
real  estate  with  his  debts,  but  also  to  exonerate  his  personal  estate  there- 
from "  (A-). 

49.  Aldrich  v.   Cooper. — Leading  case  on  Marshalling,  which 

proceeds  on  the  principle  that  "  a  person  having  two  funds 
to  satisfy  his  demands  shall  not  by  his  election  disappoint  a 
person  who  has  only  one  fund." 

The  order  in  -which  the  assets  of  a  testator  are  applied  in  administration  is 
as  follows:— 

(1.)  The  general  personal  estate. 

(2.)  Real  estate  devised  for  payment  of  del  its. 

(3.)  Real  estate  descending  to  the  heir. 

(4.)  Real  estate  charged  with  debts  and  devised  or  descended. 

(5. )  General  legacies. 

(6.)  Real  estate  devised   not  charged  with  debts  and  specific  gifts. 

(7.)  Property  appointed. 

(8.)   Paraphernalia  of  widow. 


,/.    Snell's  Equity,  6th  ed.,  p.  226. 


52.  Aleyn  v.  Belcher. 

53.  Topham  v.  Duke  of  Portland. 


456  APPENDIX    B. 

50.  Alexander    v.   Alexander. — In  aa  excessive  execution  of 

a  power,  excess  only  is  void,  if  boundary  lines  clear. 

51.  Toilet    r.    Toilet. — Equity  will    often  make  defective  execu 

Hon  of  a  power  good,  but  will  not  generally  assist  in  cafe 

of  non- execution. 

A  person  having  a  spe- 
cial power  of  appoint-  - 
ment  must  execute  it 
bond  fide  for  the  end 
designed.  If  he  exe- 
cutes it  for  any  other 
end,  equity  will  set  the 
execution  aside  as  a 
fraud  upon  the  power. 

Powers  of  appointment  are  of  two  kinds,  general  and  special.  A  general 
power  of  appointment  is  equivalent  to  absolute  property,  and  the  person 
having  the  power  can  appoint  it  to  whom  he  likes.  A  special  power  of  appoint- 
ment is  a  power  to  appoint  to  special  persons  or  classes  of  persons.  The  most 
familiar  example  of  such  a  power  is  the  power  given  in  a  marriage  settle- 
ment to  the  husband  and  wife  to  appoint  the  property  subject  to  the  settlement 
amongst  the  issue  of  the  marriage.  Such  a  power  must  be  exercised  conform- 
ably with  its  real  object — namely,  the  benefit  of  the  issue  or  some  of  them; 
and  if  exercised  for  a  corrupt  purpose  with  the  intention,  for  example,  of 
benefiting  the  appointors  themselves,  or  for  purposes  more  extensive  than  the 
power  indicates,  the  execution  will  be  set  aside. 

54.  Edwards  v.  Slater. — A  power  in  gross  is  not  suspended 
by  a  forfeiture  of  the  life  estate  of  the  donee  of  the  power, 
or  extinguished  by  an  assignment  of  totums  tat  inn  simm,  or 
other  alteration  of  his  life  estate. 

This  is  the  leading  case  upon  the  suspension  and  extinguishment  of  powers 
by  the  acts  of  the  donee  of  the  power.  Powers  to  raise  estates  are  either 
simply  collateral  or  not  simply  collateral.  Powers  not  simply  collateral  are 
of  two  sorts.  First,  appendant;  secondly,  in  gross.  Powers  simply  collateral 
could  not  formerly  be  released  or  extinguished  by  the  donee;  but  see  now  the 
Conveyancing  Act,  1881,  sect.  52.  An  example  of  such  a  power  is  where  a. 
stranger  with  no  estate  in  the  land  has  a  power  limited  to  him  to  charge  the 
land.  A  power  appendant  or  annexed  to  the  land  can  be  either  extinguished 
or  suspended  by  the  donee  of  the  power  before  executing  the  power  granting 
away  all  or  part  of  his  estate.  He  is  in  such  a  case  not  allowed  to  derogate 
from  his  prior  grant.  A  power  in  grcss — for  example,  a  power  given  to  a 
tenant  for  life  to  create  an  estate  which  is  not  to  begin  till  after  his  own  life 
estate  is  determined — cannot,  as  was  decided  in  the  above  case,  be  suspended, 
or  extinguished  by  any  dealing  with  the  life  estate. 


APPENDIX    B.  457 

55.  Bradley  v.  PeixotO.  —  A  condition  in  general  restraint  of 

alienation  annexed  to  an  absolute  gift  of  personalty  is  re- 
jected and  the  absolute  gift  remains  discharged  from  the 
condition. 

The  principle  laid  down  in  this  case  is  hot  confined  to  gifts  of  personalty, 
but  applies  also  to  similar  restraints  upon  the  alienation  of  estates  in  fee  or 
tail.  The  condition  against  alienation  is  considered  inconsistent  with  and  re- 
pugnant to  such  estates  and  is  void.  But  a  limited  restriction — for  example 
not  to  sell  except  to  a  certain  class  of  persons — is  good.     Litt.  223a,  sec.  361. 

56.  Seymor's  case. — Seymor's  case  contains  a  classification 

of  estates  of  inheritance  which,  says  Lord  Coke,  are  either 
fee  simple  or  fee  tail ;  an  estate  of  fee  simple  is  either  an 
estate  of  inheritance  absolute  and  indeterminable,  as 
where  lands  are  given  to  a  man  and  his  heirs,  or  a  fee 
simple  determinable,  which  latter  is  either  (1)  expressly  de- 
rived out  of  an  absolute  estate  in  fee  simple;  or  (2)  de- 
rived out  of  an  estate  tail.  A  fee  simple  determinable 
derived  out  of  a  fee  simple  is  either  (a)  by  condition,  as 
upon  mortgage,  and  that  is  called  a  fee  simple  condi- 
tional; or  (b)  by  limitation,  as  if  A.  enfeoff  B.  of  the 
manor  of  D.  to  have  and  to  hold  to  him  and  his  heirs  so 
long  as  C.  has  heirs  of  his  body,  and  that  is  called  a  fee 
simple  limited  and  qualified.  A  fee  simple  determinable 
which  is  derived  out  of  an  estate  tail  is  created  when 
a  tenant  in  tail  conveys  to  A.  and  his  heirs  in  such  a 
manner  as  to  bar  his  own  issue  only,  there  A.  has  an 
estate  in  fee  simple  so  long  as  the  tenant  in  tail  has  heirs 
of  his  body;  this  is  now  called  a  base  fee. 

57.  Taltarum's  case. — This  case  recognised  the  validity  of 

a  common  recovery  as  a  means  of  barring  estates  tail,  and 
so  virtually  repealed  the  Statute  De  Donis  Condi tionali- 
bus  (13  Edw.  I.,  c.  1)  which  had  made  entails  perpetual. 

An  estate  tail  is  now  barred  by  an  assurance  by  deed  enrolled  in  the  High 
Court  of  Justice  (formerly  in  the  Court  of  Chancery)  within  six  months  after 
execution  (3  &  4  Will.  IV.,  c.  74),  and  the  learning  of  recoveries  therefore  is 
now  antiquated. 


458  APPENDIX    B. 

58.  Attorney  -  General   v.    Sands. — Leading  case  on  Es- 

cheat mill  Forfeiture.  Bight  to  escheat  is  founded  on 
"  the  want  of  a  tenant  to  perform  service." 

Bastardy  is  the  most  usual  cause  of  the  failure  of  heirs.  Forfeitures  for 
treason  and  felony  were  abolished  by  33  &  :;4  Vict.  c.  23. 

59.  Shelley's  case.     "  Wherever  a  man  by  any  gift  or  con- 

veyance  takes  an  estate  of  freehold,  and  in  the  same  gift 
or  conveyance  an  estate  is  limited,  either  mediately  or  im- 
mediately, to  his  heirs  in  fee  or  in  tail,  the  word  'heirs7 
is  a  word  of  limitation,  and  not  of  purchase.'''  (In  plain 
English,  the  word  is  not  to  be  taken  as  giving  the  heirs 
anything,  but  simply  as  marking  out  the  quantity  of 
estate  which  the  donee  himself  is  to  have.) 

Though  the  two  limitations  must  be  in  the  same  instrument,  a  will  and  cod- 
icils are  for  this  purpose  considered  as  one  instrument.  Hays  d.  Foorde  r. 
Foorde,  2  W.  Bl.  698.  The  rule  applies  equally  to  limitations  of  freehold  and 
copyhold  estates,  and  to  estates  pur  autre  vie,  Doe  d.  Jeff  v.  Robinson,  8  B.  & 
C.  29G.  A  very  recent  application  of  this  rule  may  be  found  in  the  case  of 
Bowen  v.  Lewis,  decided  by  the  House  of  Lords  in  1884  (54  L.  J.  Q.  B.  54), 
where  Lord  Bramwell  said: — "The  rule  in  Shelley's  case  has  to  be  considered 
— a  rule  which  may  have  had  some  reason  in  it  when  it  was  invented,  but 
which,  when  applied,  almost  invaribly  frustrates  the  intention  of  the  testator, 
which  ought  to  be  ascertained." 

60.  Tyrringham's  case. — Common  of  pasture  appendant  is 

a  right  annexed  to  the  possession  of  land  within  a  manor, 
and  entitles  the  commoner  to  feed  his  beasts  on  the  wastes 
and  upon  the  lands  of  other  persons  within  the  same 
manor.  It  is  properly  annexed  to  arable  land,  and  is  lim- 
ited to  such  animals  as  are  necessary  for  tillage.  It  is 
of  common  right,  and  as  all  manorial  tenures  must  have 
been  created  prior  to  the  Statute  of  Quia  Emptores,  it 
can  only  be  claimed  by  immemorial  prescription,  and  not 
by  grant  or  by  custom.  Common  appurtenant,  on  the 
other  hand,  does  not  arise  from  any  connexion  of  tenure, 
and  may  be  annexed  to  lands  in  different  manors  from 
those  in  which  it  is  claimed.  It  may  be  annexed  to  any 
kind  of  land,  and  may  be  foi^  beasts  not  usually  common- 
able. It  is  against  common  right,  and  must  be  claimed 
by  grant  or  by  prescription,  which  supposes  a  now  forgot- 
ten grant. 


APPENDIX    B.  459 

61.  De  la  Warr  v.  Miles. — This  capo,   which  was  decided  by 

the  Court  of  Appeal  in  1881.  deals  with  the  application  of 
the  Prescription  Act  to  claims  of  rights  of  common.  It 
was  held  that  the  defendant  and  his  predecessors  in  title 
having  been  shown  to  have  actually  enjoyed,  as  of  right,  cer- 
tain commonable  benefits  in  respect  of  his  particular  tene- 
ment for  upwards  of  sixty  years,  had  acquired  such  rights 
indefeasibly,  and  the  fact  that  they  had  claimed  to  enjoy  these 
benefits  under  the  mistaken  supposition  that  all  the  com- 
moners were  entitled  to  do  so,  did  not  prevent  the  acquisi- 
tion of  the  right  by  prescription. 

62.  Sury   v.  Pigot. — Where  a  right  of  way  (not  being  a  way 

of  necessity)  exists,  and  there  arises  a  unity  of  seisin  of 
the  land  and  of  the  way  over  the  land  in  one  and  the  same 
person,  the  right  of  way  is  either  extinguished  or  suspended 
according  to  the  duration  of  the  respective  estates  in  the 
land  and  the  way  ;  so  that  unity  of  seisin  will  suspend  such 
an  easement,  but  not  necessarily  extinguish  it,  unless  the  es- 
tates in  the  respective  tenements  are  estates  in  fee  simple. 
Moreover,  unity  will  not  extinguish  a  watercourse  or  other 
similar  easement,  for,  in  such  case,  the  right  does  not  arise 
from  consent  or  prescription,  but  ex  jure  naturce. 

The  chief  ways  in  which  an  easement  may  be  extinguished  are  by  unity  of 
possession,  by  Act  of  Parliament,  by  release  under  seal,  and  by  the  abandon- 
ment implied  from  non-user. 

63.  Bowles'  case.  \  Leadingcases  as  to  amount  of  waste  that 

64.  Garth,  v.  Cotton.      (       can  be  committed  with  impunity. 

A  tenant  for  life  cannot  commit  waste,  either  voluntarily  or  permissive. 
But  if  his  estate  is  ''  without  impeachment  of  waste,"  he  has  more  liberty;  but 
still  he  may  not  deface  the  family  mansion,  fell  ornamental  timber,  or,  gener- 
ally, commit  what  is  called  equitable  waste.  See  Judicature  Act.  1873,  sec.  25, 
sub-s.  3.  In  connection  witb  this  subject,  the  increased  powers  given  to  tenant 
for  life  by  the  Settled  Land  Act,  1882  (45  &  4G  Vict.  c.  38),  may  be  men- 
tioned. 

65.  Rouse's   case. — Person  who  comes  into  estate  by  right,  but 

remains  in  after  his  right  has  expired,  is  tenant  at  sufferance 
and  doviimis  pro  tempore. 


460  APPENDIX    P.. 

66.  Richardson  u.  Langridge. — Tenacy  at  will  created  by 
agreement  to  let  so  long  as  both  parties  please,  and  rent 
being  reserved  accruing  de  die  in  diem,  and  not  referable 
to  a  year,  or  any  aliquot  part  of  a  year. 

See  p.  101. 

67.  Clun's  case. — Leading  case  on  apportionment  of  rent. 

By  the  Apportionment  Act,  1870  (33  &  34  Vict.  c.  33),  all  rents  and  other 
periodical  payments  in  the  nature  of  income  are  to  be  considered  as  accruing 
from  day  to  day,  and  to  be  apportionable  in  respect  of  time  accordingly.  See 
recent  case  of  Swansea  v.  Thomas,  10  Q.  B.  D.  48. 

68.  Morley    v.   Bird. — Notwithstanding  leaning    of    court    in 

favour  of  tenancy  in  common,  an  interest  given  to  several 
without  words  "equally  among,"  or  anything  that  court  can 
lay  hold  of,  is  joint. 

AQ     T     lr      •   C  "h  i  Persons  making  purchase  for  purpose 

•I      of  joint  undertaking  or  partnership 

70.  Lake  r.  Craddock.  /  J ,         .    .  &      .  ..    l 

{       are  tenants  in  common  in  equity. 

See  p.  116. 

71.  Wake  v.  Conyers. — Court  will  not  exercise  jurisdiction  in 

settling  boundaries  unless  soil  itself  in  dispute,  or  other  good 
reason. 

There  ought  to  be  "  some  superadded  equity;"  e.g.,  confusion  through  fraud, 
or  through  the  fault  of  a  party  whose  duty  it  was  to  preserve  the  boundaries, 
will  justify  interference. 

72.  Lie  Neve  v.  Le  Neve. — Unregistered  settlement  of  lands 

in  register  county  preferred  to  subsequent  registered  one, 
the  person  taking  the  lands  under  the  latter  settlement  hav- 
ing notice  of  the  former.  See  now  as  to  Yorkshire,  47  &  48 
Vict.  c.  54,  s.  14,  etc. 

73.  Agra  Bank   v.   Barry. — Absense  of  title  deeds  will  not 

constitute  constructive  notice  of  prior  interest,  if  their  ab- 
sence is  satisfactorily  accounted  for. 

74.  Bassett  v.  Nosworthy. — Equity  will  give  no  assistance  to 

the  legal  title  against  a  bona* fide  purchaser  for  valuable 
consideration  who  has  actually  paid  the  purchase-money 
and  executed  the  conveyance  without  notice  of  an  adverse 
title. 


APPENDIX   B.  461 

Notice  is  actual  or  constructive.  Constructive  notice  is  no  more  than  evidence  of 
notice,  the  presumption  of  which  is  so  violent  that  the  court  will  not  even  allow 
of  its  heing  controverted.     It  is  of  two  kinds  : 

(1.)  Where  actual  notice  has  heen  given,  and  the  party  is  charged  with  cir- 
cumstances which  might  have  heen  discovered  on  inquiry  ;  ami 

(2.)  "Where  inquiry  has  heen  purposely  advoided  to  escape  notice.  See,  how- 
ever, the  restriction  on  constructive  notice  introduced  hy  the  third  section  of 
the  Conveyancing  Act,  1882  (45  &  46  Vict.  c.  39).  The  court  will  x>ostpone  the 
prior  legal  estate  to  a  subsequent  equitable  estate ;  (a)  where  the  owner  of 
the  legal  estate  has  assisted  in  or  connived  at  the  fraud  which  has  led  to  the 
creation  of  a  subsequent  equitable  estate,  without  notice  Of  the  prior  legal  es- 
tate ;  of  which  assistance  or  connivance,  the  omission  to  use  ordinary  care  in 
inquiring  after  or  keeping  title  deeds  may  be,  and  in  some  cases  has  been,  held 
to  be  sufficient  evidence,  where  such  conduct  cannot  otherwise  be  explained  ;  (b) 
where  the  owner  of  the  legal  estate  has  constituted  the  mortgagor  his  agent, 
with  authority  to  raise  money,  and  the  estate  thus  created  has  by  the  fraud  or 
misconduct  of  the  agent  been  represented  as  being  the  first  estate. 

75.  Agar  v.  Fairfax. — Leading  case  on  Partition,  which  is  "  the 

remedy  for  the  inconvenience  of  undivided  ownership." 

The  old  writ  of  partition  was  abolished  by  3  &  4  Will.  IV.,  c.  27  8.  36,  and  a 
partition  is  now  usually  effected  by  proceedings  in  Chancery,  ending  with 
mutual  conveyances. 

76.  Mackreth  v.  Symons.— Vendor's  lien  for  unpaid  purchase- 

money  prevails  against  everybody  except  bond  fide  purchas- 
ers without  notice  that  the  money  remains  unpaid. 

The  protection  of  the  bond  fide  purchaser  who  has  paid  his  money  and  taken 
his  conveyance  is  on  the  principle  that  where  the  equities  are,  equal  the  law  shall 
prevail.  To  the  extent  of  the  lien  the  purchaser  becomes  a  trustee  for  the  ven- 
dor. The  giving  of  a  mere  personal  security  for  the  purchase-money,  e.g.,  a- 
bond  or  bill  of  exchange,  will  not  be  sufficient  of  itself  to  discharge  the  equi- 
table lien,  yet  where  it  appears  that  the  security  was  substituted  for  the  consid- 
eration money  the  lien  will  be  lost. 

77.  Fletcher  v.  Ashburner. — Money  directed  to  be  used  for 

buying  land,  and  land  directed  to  be  turned  into  money,  are 
to  be  considered  as  'that  species  of  property  into  which  they 
are  directed  to  be  converted. 

78.  Ackroydf.  Smithson. — Where  the  purposes  of  conversion 

fail,  the  property  goes  in  its  original  state. 

Fl°tcher  v.  Ashburner  is  founded  on  the  maxim  that  equity  regards  that  as  done 
which  ought  to  be  done,  so  that  where  there  is  an  intention  to  convert  with  regard 
31    COMMON   LAW. 


462  APPENDIX   B. 

to  a  particular  purpose,  and  that  purpose  cannot  be  served,  the  court  will  not 
infer  an  intention  to  convert  the  property  for  any  other  purpose  not  expressed. 
Ackroyd  v.  Smithson  was  the  first  case  in  which  young  John  Scott  (afterwards 
Lord  Eldon)  markedly  distinguished  himself,  and,  as  Mr.  Snell  in  his  "Prin- 
ciples of  Equity  "  justly  observes,  "it  would,  perhaps,  be  impossible  to  find  a 
clearer  exposition  of  the  principles  governing  this  class  of  cases,  than  in  his 
Celebrated  argument." 

79.  Marsh  v.  Lee. — Third  mortgagee,  having  advanced  money 

without  notice  of  second  mortgage,  and  having  afterwards 
brought  in  the  first  mortgage,  allowed  to  tack  and  squeeze 
out  second  mortgagee. 

80.  Brace  v.  Marlborough.— Judgment  creditor  bringing  in 

first  mortgage  not  allowed  to  tack  against  second  mortgagee, 
for  he  did  not  advance  his  money  on  the  immediate  credit  of 
the  mortgaged  land. 

The  doctrine  of  tacking  was  abolished  by  section  7  of  the  Vendor  and  Pur- 
chaser Act,  1874,  and  restored  by  the  Land  Transfer  Act,  1875.  The  doctrine 
of  the  consolidation  of  mortgages  must  not  be  confounded  with  tacking.  That 
doctrine  is  that  when  the  same  mortgagor  has  mortgaged  different  estates  which 
ultimately  become  vested  in  one  mortgagee,  he  cannot  redeem  one  without  re- 
deeming all.  But  this  will  not  apply  where  the  mortgagor  has  assigned  the 
equity  of  redemption  before  effecting  the  subsequent  mortgages.  See  Jennings 
v.  Jordan,  6  App.  Ca.  G98  ;  and,  moreover,  the  application  of  the  doctrine  has 
(in  the  absence  of  special  agreement)  been  restrained  to  cases  where  none  of 
the  mortgages  sought  to  be  consolidated  has  been  made  under  the  Conveyanc- 
ing Act  (41  &  45  Vict.  c.  41,  s.  17). 

81.  Russel  v.  Russel. — Mere  deposit  of  title  deeds,  good  equi- 

table mortgage. 
This  is  in  spite  of  the  4th  section  of  the  Statute  of  Frauds. 

82.  Casborne  v.  Scarfe. — Equity  of  redemption  an   estate  in 

the  land,  which  is  considered  only  security  for  money  lent. 

83.  Howard  v.  Harris. — No  agreement  in  mortgage  can  make 

it  irredeemable,  either  after  death  of  mortgagor  or  upon  fail- 
1  ure  of  issue  male  of  his  body. 

84.  Thornborough  v.  Baker. — Executor,  not  heir,  of  mortga- 

gee, in  fee  entitled  to  money  secured  by  mortgage. 

85.  Forbes  v.  Moffatt. — Leading  case  on  meger  and  mortgages. 

Locke  King's  Act  (17  &  18  Vict.  c.  113)  provides  that  mortgage  debts  shall 
be  paid  out  of  the  mortgaged  lands  unless  a  contrary  intention  appears  by  the 
will  ;  and  see  30  &  31  Vict.  c.  69. 


APPENDIX    B.  488 

86.  Glenorchy  v.  Bosville. — Executory  trusts  will  be  moulded, 

as  far  as  ascertainable,  according  to  settlor's  intention. 

Trusts  are  said  to  be  executed  when  they  appear  to  be  finally  declared  by  the 
instrument  creating  them,  and  executory  when  some  further  act  on  the  part  of 
the  author  or  the  trustees  is  necessary  to  give  them  effect.  In  the  latter  case 
technical  expressions  will  not  be  construed  strictly. 

87.  Tyrrell's  case. — There  cannot  be  a  use  upon  a  use. 

Thus  the  whole  object  of  the  Statute  of  Uses  was  defeated,  and  the  Court  of 
Chancery  regained  its  old  jurisdiction. 

88.  Ellison  v.  Ellison. — Though  assistance  of  court  cannot  be 

had  without  consideration  to  constitute  party  cestui  que  trust, 
yet,  if  legal  conveyance  actually  made,  equitable  interest 
will  be  enforced. 

Equity  will  enforce  a  trust  where  it  is  executed,  or  where  it  is  raised  by  will, 
even  though  it  is  a  mere  voluntary  trust. 

89.  Elliott  v.  Merryman. — Leading  case  as  to  obligation  of 

purchaser  from  trustees  to  see  to  application  of  purchase- 
money. 

See,  however,  22  &  2:1  Vict.  c.  35,  s.  83;  23  &  24  Viet.  e.  145,  s.  29;  44  &  45 
Vict.  c.  41  s.  36;  and  45  and  46  Vict.  c.  38,  s.  40. 

90.  Dyer  v.  Dyer. — Purchase  by  father  in  name  of  son,   ad- 

vancement to  son,  not  resulting  trust. 

The  presumption  of  advancement  (which  may  be  rebutted  by  parol  evidence) 
also  arises  in  favour  of  a  wife,  a  grandchild,  a  nephew,  or  an  illegitimate  child, 
But  it  will  not  arise  in  favour  of  a  mistress,  even  though  she  is  the  purchaser's 
deceased  wife's  sister  and  he  has  gone  through  the  form  of  marriage  with  her. 
Where,  however,  a  conveyance  is  taken  in  a  stranger's  name,  the  resulting 
trust  may  be  rebutted  by  evidence  of  the  purchaser's  intention  that  the  stranger 
should  take  for  his  own  benefit. 

91.  Keech   v.   Sandford. — Trustees   renewing   lease   for    self, 

without  fraud,  and  lessor  having  refused  renewal  to  cestui 
que  trust,  is  nevertheless  trustee  of  lease  for  latter. 

92.  Fox    v.    Mackreth. — Trustee  cannot   generally   purchase 

trust  estate  from  cestui  que  trust. 


404  APPENDIX   B. 

93.  Robinson  v.  Pett. — Court  never  allows  trustee  anything 

for  bis  trouble. 

The  point  is,  that  a  trustee  shall  not  be  allowed  to  make  a  good  thing  out  of 
his  trust.  By  express  agreement,  however,  he  may  receive  remuneration,  and 
there  are  some  exceptional  cases  [e.g.,  where  he  is  prepared  to  give  more  than 
any  one  else)  where  he  may  even  buy  from  cestui  que  trust.  See  also  44  &  45 
Vict.  c.  41,  ss,  31,  32,  and  seq.;  and  45  &  46  Vict.  c.  38,  s.  43. 

{  Trustees  not  generally  respon- 

„  ,     „,  ,  _,  sible  for  acts  or  defaults  of  co- 

94.  Townley  v.  Sherborne.  J  ,.  ,.    ,. 

_,_     _    .  „.    ,  trustee;  distinction   between 

95.  Bnce  v.  Stokes. 

trustees  and  executors  as  to 


I    effect  of  joining  in  receipts. 


See  Westley  v.  Clarke,  1  Eden,  357;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341;  Wil- 
kins  v.  Hogg,  3  Giff.  116;  and  44  &  45  Vict.  c.  41.  The  41st  section  of  the  Set- 
tled Land  Act,  1882  (45  &  46  Vict.  c.  38),  provides  that  "each  person  who  is 
for  the  time  being  trustee  of  a  settlement  is  answerable  for  what  he  actually 
receives  only,  notwithstanding  his  signing  any  receipt  for  conformity,  and  in 
respect  of  his  own  acts,  receipts,  and  defaults  only." 

96.  Row  v.  Dawson. — Chose  in  action  assignable  in  equity, 

and  no  particular  form  of  words  necessary. 

97.  Ryall  v.  Rowles. — Assignment  of  debts  without  notice  to 

debtor  invalid  against  assignees  in  bankruptcy. 

See  Brice  v.  Bannister,  p.  225. 

98.  Dering  v.  Winchelsea. — Doctrine  of  contribution  extends 

to  sureties  bound  by  different  instruments. 

99.  Rees  v.  Berrington.  —Surety  released  by  creditor  giving 

time  to  debtor. 

See  Wldtchcr  v.  Halt,  p.  18. 

f  Equity    looks    with     suspi- 

100.  Cnesterfield  v.  Janssen.  i         •  i 

UUCi3l,cluom       ooiio^n.       j        clou    on    kargairjg    made 

101.  Aylesford  v.  Morris.  .,.  ,  ,    . 

with  expectant  neirs. 

See  p.  174. 

102.  Fox  v.  Chester. — Sale  of  next  presentation  whilst  incum- 

bent dying,  not  void  for  simony,  if  no  intention  to  present 
particular  clerk. 
See  p.  140. 


APPENDIX   B. 


4G5 


103.  Huguenin  v.  Baseley. — Voluntary  settlement  in  favour 

of  person  in  confidential  relation  set  aside  as  obtained   by 
undue  influence. 

See  p.  373. 

104.  Peachy  v.   Somerset. — Copyhold  tenant  who  has  been 

leasing  wrongfully  and  cutting  down  trees  not  entitled  to 
relief  from  forfeiture. 

105.  Sloman  v.  Walter,, — Equity  will   relieve   against  penalty 

merely  intended  to  secure  enjoyment  of  collateral  object. 

See  Kemble  v.  Farrcn,  p.  244,  and  44  &  45  Vict..c.  41,  s.  14. 


106.  Landsdowne  v.  Landsdowne. 

107.  Beauchamp  v.  Winn. 


108.  Stapilton  v.  Stapilton. 

109.  Gordon  v.  Gordon. 


See  Marriott  v.  Hampton,  p.  209. 


Equity  gives  relief  for 
mistake  of  law  where 
mistake  is  one  of  title 
arising  from  ignor- 
ance of  elementary 
principle  of  law  ;  but 
generally  only  for 
mistake  of  fact. 

Agreement  entered  into  for 
compromise  of  doubtful 
right,  binding ;  but  there 
must  be  no  keeping  back 
material  information. 


110.   Oxford's  case. — Leading  case  as  to  principles  on   which 
equity  will  interfere  to  restrain  proceedings  at  law. 

The  importance  of  this  case  has  been  considerably  diminished  by  the  fusion 
of  law  and  equity  introduced  by  the  Judicature  Acts. 


4&i  APPENDIX    C. 


APPENDIX  C. 

PRINCIPAL  LEGAL  MAXIMS. 

(1. )   Accessorinm  non  ducit,  sed  sequitur,  suum  principale. 

(  The  accessory  does  not  lead,  but  follows,  its  principal 
(2.)  Acta  exteriora  indicant  interiora  secreta. 

[Overt  acts  proclaim  a  man's  intentions  and  motives.) 
(3.)  Actio  personalis  moritur  cum  persona. 

(A  personal  right  of  action  ceases  at  death.) 
(4.)  Actus  Dei  nemini  facit  injuriam. 

(The  act  of  God  does  injury  to  no  man.) 
(5)  Benigne  faciendse  sunt  interpretationes  propter  simplicitatem 
laicorurn,  ut  res  magis  valeat  quam  pereat. 
(Instrument  ought  to   be  construed   leniently,  with  allowance 
made  for  the  ignorance  of  people  who  are  not  lawyers,  so 
that  the  transaction  may  be  supported,  and  not  rendered 
nugatory. ) 
(6.)  Caveat  emptor. 

( The  buyer  must  look  after  himself. ) 
(7.)  Cessante  ratione,  cessat  lex. 

(  When  a  reason  for  laiv  ceases  to  exist,  so  also  does  the  law 
itself.) 
(8.)  Contemporanea  expositio  est  optima  et  fortissima  in  lege. 

( The  best  ivay  of  getting  at  the  meaning  of  an  instrument  is  to 
ascertain  when  and  under  what  circumstances  it  was  made.) 
(9. )  Cuilibet  in  sua  arte  perito  credendum  est. 

(Every  man  is  an  expert  in  the  particular  branch  of  business 
he  is  familiar  with. ) 


APPENDIX    C.  407 

(10.)  Delegatus  non  potest  delegare. 

(A  person  having  merely  delegated  authority  cannot  himself 
delegate  that  autlwrity  to  another.) 
(11.)  De  minimis  non  curat  lex. 

(  The  law  does  not  trouble  itself  about  trifles. ) 
(12.)   Domus  sua  est  cuique  tutissimum  refugium." 

( A  mail's  house  is  his  safest  retreat, ) 
(13.)  Ex  nudo  pacto  non  oritur  actio. 

(In  order  to  ground  an  action,  an  agreement  must  have  a 
consideration.) 
(14.)   Expedit  reipublicce  ne  quis  sua  re  male  utatur, 

( The  good  of  the  State   requires  a  man  not  to   injure  his  oivn 
property. ) 
(15.)  Expressum  facit  cessare  taciturn. 

(When  all  the  terms  are  expressed,  nothing  can  be  implied.) 
(16.)  Ex  turpi  causa  non  oritur  actio. 

(Immorality  will  not  ground  an  action.) 
(17.)   Id  certum  est  quod  certum  reddi  potest. 

What  can  be  reduced  to  a  certainty  is  already  a  certainty.) 
(18.)  Ignorantia  facti  excusat,  ignorantia  jtiris  non  excusat. 

(A  man  may  be  pardoned  for  mistaking  facts,  bid  not  for 
mistaking  the  law.) 
(19.)   In  contractis  tacite  insunt  quae  sunt  moris  et  consuetudinis. 
(Persons  are  presumed  to  contract  with  reference   to  'habits 
and  customs. ) 
(20.)   In  jure  non  remota  sed  proxima  causa  spectatur. 

(It  is  not  the  remote   but  the   immediate   cause   that  the   law 
looks  at.) 
(21.)  Interest  reipublicse  ut  sit  finis  litium. 

•  (It  is  the  interest  of  the  State  that  litigation  should  cease.) 

(22.)  Judicis  est  jus  dicere,  non  dare. 

(A  judge  should  administer  the  law  as  he  finds  it,  not  make 
it.) 
(23.)  Lex  non  cogit  ad  impossibilia. 

( The  laio  never  urges  to  impossibilities. ) 
(24.)  Lex  semper  intendit  quod  convenit  rationi. 

( The  law  must  be  taken  to  intend  what  is  reasonable. ) 

( 25. )  Lex  spectat  naturae  ordinem. 

(The  law  takes  into  account  the  natural  succession  of  things.) 


468 


APPENDIX    C. 


(26. 

(27. 

(28. 

(29. 

(30. 

(81 

(32. 

(33. 
(34. 


(35. 
(36. 
(37. 
(38. 

(39. 
(40. 


Modus  et  conventio  vincunt  legem. 

(Persons  may  contract  themselves  out  of  their  legal  liabilities.) 

Non  dat  qui  non  habet. 

(A  man  cannot  give  what  he  has  not  got.) 

Non  omnium   quae  a   majoribus  constituta  sunt  ratio  reddi 

potest. 
(A  reason  cannot  be  given  for  everything  that  our  ancestors 

were  pleased  to  ordain. ) 
Nullum  simile  est  idem  nisi  quatour  pedibus  currit. 
(Similarity  is  not  analogy  unless  it  runs  on  all  fours.) 
Omne  majus  continet  in  se  minus. 
(The  greater  includes  the  less.) 
Omnia  prsesumuntur  contra  spoliatorem. 
(Every  presumption  is  made  against  one  who  spoils.) 
Omnia  prsesumuntur  rite  et  sollenniter  esse  acta. 
(It  is  presumed  that  all  the  usual  formalities  have  been  com- 

plied  with. ) 
Omnis  ratihibitio  retrotrahitur  et  mandato  priori  asquipafa- 

tur. 
(A  ratification  is  taken  back  and   made  equivalent  to  a  pre- 
vious command.) 
Optima  est  lex  qua?  minimum  relinquit  arbitrio  judicis,  opti- 

mus  judex  qui  minimum  sibi. 
( The  best  system  of  law  is  that  ivhich  leaves  the  least  to  the 

discretion  of  the  judge;  the  best  judge  is  he  who  leaves  the 

least  to  his  own  discretion.) 
Optimus  legis  interpres  est  consuetudo. 
(Custom  is  thebest  interpreter  of  law.) 
Potior  est  conditio  possidentis. 
( There  is  a  great  advantage  in  being  in  possession. 
Qui  facit  per  alium,  facit  per  se. 
(He  who  does  a  thing  by  another  does  it  himself.) 

Qui  hseret  in  litera  haeret  in  cortice. 

(He  who  harps  on  the  mere  letter  of  a  written  instrument  does 
not  get  at  the  pith  of  the  matter.) 

Qui  non  improbat,  approbat.  , 

(Not  blaming  is  equivalent  to  praising.) 
Qui  prior  est  tempore,  potior  est  jure. 
( The  laic  favours  the  earlier  in  point  of  time. ) 


APPENDIX   C.  469 

(41.)  Qui  sentit  commoclum,  sentire  debet  et  onus. 

(Benefit  and  burden  ought  to  go  hand  in  hand. ) 
(42. )  Quicquid  plantatur  solo,  solo  cedit. 

(  Whatever  is  planted  in  the  ground  becomes  part  of  the  ground.) 
(43.)  Quilibefc  potest  renunciare  juri  pro  se  introducto. 

(A  man  may  waive  a  right  established  for  his  own  benefit.) 
(44.)  Quod  ab  initio  non  valet,  in  tractu  teniporis  non  convalescit. 

(Time  will  not  cure  ivhat  is  wrong  from  the  beginning.) 
(45.)  Quod  fireri  non  debut  factum  valet. 

( What  ought  never  to   have  been  done  at  all,  if  it  has  been 
done,  may  be  valid. ) 
(4G.)  Quod  subintelligitur,  non  deest. 

( What  is  to  be  understood,  is  as  good  as  if  it  were  there.) 
(47.)  Quoties  in  verbis  nulla    est   ambiguitas,  ibi  nulla  expositio 
contra  verba  fienda  est. 

(When  the  language  of  a  written  instrument  is  perfectly  plain, 
no  construction  ivill  be  made  to  contradict  the  language.) 
(48.)  Res  inter  alios  acta  alteri  nocere  non  debet. 

(A  man  ought  not  to  be  prejudiced  by  what  has  taken  place 
between  others.) 
(49.)  Res  judicata  pro  veritate  accipitnr. 

(The  decision  of  a  court  of  justice  is  assumed  to  be  correct.) 

(50.)  Respondeat  superior. 

(A  man  must  answer  for  his  dependents.) 
(51.)  Salus  populi  suprema  lex. 

( The  welfare  of  the  State  is  the  highest  laiv. ) 
(52.)  Sic  utere  tuo  ut  alienum  non  loedas. 

(Make  such  a  use  of  your  own  property  as  not  to  injure  your 
neighbour's. ) 
(53. )  Simplex  commendatio  non  obligat. 

(A  man  is  not  obliged  to  cry  stinking  fish.) 
(54. )  Solivitur  secundum  modum  solventis. 

( Payment  is  to  be  made  as  the  prayer  pleases. ) 
(55.)  Spondes  peritiam  artis. 

(If  your  position  implies  skill,  you  must  use  it.) 
(56.)  Ubi  jus,  ibi  remedium. 

(Where  there  is  a  right,  there  is  a  remedy.) 


470  APPENDIX    C. 

(57.)  Verba  chartarum  fortius  accipuntur  contra  proferentum. 

( The  language  of  an  instrument  is  to  be  taken  strongly  against 
the  person  whose  language  it  is.) 
(58. )  Verba  generalia  restringuuntur  ad  habilitatem  rei  vel  personam. 
(  General  tcords  are  to  be  tied  doivn  and  interpreted  according  to 
their  context. ) 
(59.)  Vigilantibus  non  dormientibus  jura  subveniunt. 

(  To  get  the  law's  help  a  man  must  not  go  to  sleep  over  his  own 
interests. ) 
(60.)  Volenti  non  fit  injuria. 

(  The  man  who  is  the  author  of  his  oivn  hurt  has  no  right  to 
complain. ) 


INDEX. 


ABROAD, 

contracts  made  or  torts  committed        384,  ct  acq. 

ACCEPTANCE, 

proposal  not  binding  till  , 9 

must  be  unqualified    .  * '        ' 10,  11 

within  17th  sect,  of  Statute  of  Frauds 29 

ACCIDENT, 

alteration  of  written  contract  by 159 

if  inevitable,  not  actionable      250 

when  occurrence  of,  prima  facie  evidence  of  negligence      .    .  ib. 

ACCORD  AND  SATISFACTION    .    . 233 

ACKNOWLEDGMENTS  SAVING  STATUTE  OF  LIMITATIONS  228,  el  seq. 

ADVERTISEMENT, 

contract  by       9 

railway  time-tables        65,  et  seq. 

AGENTS.     Sec  Principal  and  Agent. 

AGRICULTURAL  HOLDINGS  ACT,  1883, 

provisions  of,  as  to  fixtures 97 

provisions  of,  as  to  notice  to  quit 101 

AIR, 

action  for  interference  with 254 

ALTERATION  OF  WRITTEN  CONTRACT, 

what,  fatal  to  validity       157,  eiseq. 

AMBIGUITY, 

latent  and  patent 36 

ANCIENT  DOCUMENTS 336 

ANCIENT  LIGHTS, 

Prescription  Act  (2  &  3  Will.  IV  c.  71) 251 

open  spaces '/'■ 

different  application  of  premises *&• 

enlargement *?• 

abandonment ">• 

(471) 


472  INDEX. 

PAGE 

ANIMALS, 

ferae  naturge  cannot  be  distrained 94 

dogs       ib. 

liability  "of  owner  for  trespass  of 256 

' '  proper  vice " 51 

APPROPRIATION, 

of  chattels  sold "...  210 

of  lost  goods  may  amount  to  larceny 330 

of  payments      180 

AQUARIUM. 

mustn't  go  to,  on  Sunday 142 

ARBITRATION, 

contract  to  refer  to 128,  et  seq 

ASSAULT, 

master  responsible  for,  if  committed  by  servant  within  gen- 
eral scope  of  authority      293,  et  seq. 

in  defence  of,  or  to  regain,  freehold  premises      320 

ASSIGNMENT, 

of  insurance  policy      181 

of  fchose  in  action 225,  et  seq. 

of  lease      •  98 

of  bill  of  lading       204 

of  salaries 121 

ATHEISM       136,  et  seq. 

ATTORNMENT  CLAUSE  IN  MORTGAGE, 109 

AUCTIONEER 

cannot  sue  od  contract  he  has  signed  as  agent 17 

bidding  revocable  before  hammer  falls      9 

lots  at  auction  knocked  down  to  same  person 27 

AVERAGE, 

general      195 

particular      196 

BAILMENTS       41,  et  seq. 

BANKER 

bound  to  honour  customer's  cheque        248 

BANKRUPT, 

contract  by,  on  new  consideration,  to  pay  old  debt  ....  8 
BARRISTER, 

when,  may  sue  for  fee        .    .    . 8 

speeches  of,  privileged       338 

BETTING 144,  et  seq. 

BILLS  OF  EXCHANGE. 

consideration  of 2,  3 

taking  overdue 156 

notice  of  dishonour 154 

alteration  of 159 


INDEX.  •         473 

PAGE 

BILLS  OF  LADING 204 

BILLS  OF  SALE, 

cannot  be  given  for  sum  under  £30 222 

must  be  attested  and  registered ib. 

consideration  must  be  truly  set  forth ib. 

must  be  in  accordance  with  prescribed  form ib. 

must  have  schedule  containing  inventory  attached   ....  ib. 

BLASPHEMY * 137 

BOARD  AND  LODGING, 

not  an  "  interest  in  land  " 24 

BORROWING 43 

BOUGHT  AND  SOLD  NOTES 18 

BREACH  OF  PROMISE  TO  MARRY, 

promise  need  not  be  in  writing       207 

corroboration  of  plaintiff 's  evidence  necessary 208 

defences ib. 

damages ib. 

married  man  may  be  sued  for ib. 

infant  not  liable  for 233 

BRIBERY 121 

BROKER, 

may  bind  parties  within  Statute  of  Frauds 18 

may  be  liable  as  principal 39 

person  buying  from,  not  allowed  to  set-off  against  principal  81 

BUGS, 

good  reason  for  retiring  from  contract  to  take  furnished  house  114 

CAMPBELL'S  (LORD)  ACT 361 

CARRIERS, 

common,  are  insurers 51,  ct  seq. 

Land  Carriers  Act  (11  Geo.  IV.  and  1  Will.  IV.  c.  68)  .    .    .  56,  et  seq. 
Railway  and  Canal  Traffic  Act  (17  &  18  Vict.  c.  31)  .    .    .    .53,  et  seq. 

of  passengers,  liability  of.     See  also  Railway  Company   .  253 

CHAMPERTY 121 

CHARACTER, 

of  servant  may  be  privileged  communication 338 

evidence  of,  though  hearsay 366 

impeaching,  of  girl  in  seduction  case 311 

CHEQUE. 

refusal  of  banker  to  honour 255 

alteration  of 157 

CHILDREN, 

parent's  liability  to  support 8 

contributory  negligence  of 273 

contracts  of  infants ! 171 


474  INDEX. 

PAGK 

CHOSE  IN  ACTION, 

assignment  of 225,  et  seq. 

CHRISTIANITY, 

part  of  the  Law  of  England 137,  ct  scq. 

immorality 119 

Sunday  contracts 141,  et  seq. 

cremation ' 140 

Jews  in  Parliament 139 

CLAIM  OF  RIGHT  ." 350 

CLERGYMEN.      See  Atheism  and  Simony. 

CLERK.     See  Master  and  Servant. 

CLOAK-ROOM, 

liability  of  railway  company  for  articles  deposited  at  .    .    .  59 

CLUBS, 

liability  of  members  on  contracts 71 

COHABITATION, 

past,  no  consideration 7 

future,  illegal  consideration 122 

liability  of  man  for  contracts  kept  of  women 69 

COMMODATUM 43 

COMMON  EMPLOYMENT, 

doctrine  of 282 

Employers  Liability  Act,  1880 283 

volunteers 285 

CONCEALMENT, 

of  defects  in  contracts  of  sale  . 320 

from  insurers 187 

CONDITIONS  PRECEDENT 180 

CONSIDERATION, 

when  necessary,  and  what  is  sufficient 1 

money  recoverable  for  failure  of 4 

moral 7,  et  scq. 

past 4,  et  scq. 

illegal .*..    .  123 

continuing 6 

necessary  to  bond  in  restraint  of  trade 131 

of  guaranties 16 

of  bills  and  notes 2,3 

of  bills  of  sale 222 

CONSTRUCTION  OF  WRITTEN  CONTRACTS 161,  237,  et  seq. 

CONTRACTOR, 

employer  of,  not  generally  responsible  for  negligence  of  .    .  290,  et  seq. 

CONTRIBUTION, 

*      between  co-sureties 22 

not  between  wrong-doers 358 


INDEX.  475 

PAGE 

CONTRIBUTORY  NEGLIGENCE, 

founded  on  volenti  nonfit  injuria 269 

when  plaintiff  may  recover  in  spite  of //,. 

doctrine  of  identification 271 

of  children 273 

of  parents      274 

CONVERSION, 

what  amounts  to " :;:;:; 

innocence  of  defendant  no  excuse :;:;:; 

CONVEYANCING  LEADING  CASES.     See  Appendix  B. 

COPYRIGHT ''  317 

CORPORATION, 

must  generally  contract  by  seal 176,  et  seq. 

exceptions  to  rule 

Public  Health  Act,  1875 ! 

not  a  "person  " 

,      contracts  ultra  vires 118 

liable  for  malicious  prosecution 

COVENANTS, 

running  with  land 110  et  scq. 

waiver  of  breach  of 96  ci  seq. 

for  quiet  enjoyment 115 

to  repair ib. 

CREDIT, 

effect  of  sale  of  goods  on 312 

CREDITORS,  GIFTS  DEFRAUDING 220 

CREMATION      140 

CROPS, 

contracts  for  sale  of,  when  within  4th  section  of  Statute  of 

Frauds 23 

distraining f)3 

CUMULATIVE  PENALTIES 244 

CUSTOM, 

evidence  of,  to  explain  or  add  incidents  to  written  contracts  37,  et  seq. 
conditions  of  valid 39,  et  sri. 

DAMAGES, 

measure  of,  in  contract 226,  239,  et  seq. 

measure  of,  in  tort 360,  et  seq. 

DAMNUM  SINE  INJURIA 248 

DANGEROUS  SUBSTANCES, 

carriers  need  not  receive 51 

brought  on  land,  responsibility  for *  .    .  256,  et  seq. 


470  INDEX. 


DEATH, 

of  principal  revokes  agent's  authority 67 

presumption  of 397 

DEBT, 

assignment  of 225,  et  seq. 

"  DEBT,  DEFAULT,  or  MISCARRIAGE  " 12,  et  seq. 

DECEASED  PERSONS, 

declarations  of,  when  evidence 370,  et  seq. 

DECEIT, 

action  for 312,  et  seq. 

DEDICATION  OF  WAY  TO  PUBLIC      380 

DEED, 

consideration  not  necessary      1 

illegality  vitiates  . 120,  et  seq. 

defrauding  creditors 220,  et  seq. 

estoppel  by ' 402 

DEFAMATION, 

slander  and  libel 335,  et  seq. 

privileged  communications      338,  et  seq. 

publication  to  third  party 336. 

Act  of  1881  as  to  libels  in  newspapers 337 

libellous  contract  illegal 127 

'del  credere  agent, 

his  undertaking  not  within  Statute  of  Frauds 15 

DEPOSITU3I 45 

DEVIATION, 

in  building  contracts      224 

of  ship 192 

of  servant  in  respondeat  superior  case 295 

DISHONOUR,  NOTICE  OF, 

when  excused 156,  et  seq. 

DISMISSAL,  WRONGFUL, 

action  for 203,  et  seq. 

DISTRESS, 

things  privileged      92,  et  seq. 

trespass  ctb  initio 322,  it  seq. 

DIVERTING  STREAM 250 

DOGS, 

may  be  distrained 88 

bites  of,  responsibility  of  owners  for 256 

alleged  right  to  keep  ferocious  dog 257 

DONATIONES, 

inter  riros 373 

mortis*  eausd 376 


INDEX.  477 

PAGE 

DORMANT  PARTNERS 198 

DOUBLE  VALUE, 

action  for 96 

DRUNKARDS,  CONTRACTS  OF 175 

DURESS,  CONTRACT  OBTAINED  BY 175 

EARNEST 30 

EMPLOYERS  LIABILITY  ACT,  1880 283 

ENTRIES, 

by  persons  since  deceased,  when  evidence 370,  et  seq. 

EQUITY  LEADING  CASES.  •  See  Appendix  B. 

ESTOPPEL, 

by  record 400,  et  acq. 

by  deed 402 

by  conduct 402,  etseq. 

by  negligence 404 

EVIDENCE, 

hearsay 364,  et  seq. 

declarations  by  persons  since  deceased 370,  el  seq. 

presumptions  of  death 397,  et  seq. 

oral,  to  explain  or  vary  written  contracts 34,  etseq. 

of  custom 37,  el  seq. 

separate  documents  containing  contract  cannot  be  connected 

by  oral  evidence 32,  #1  seq. 

of  plaintiff  in  breach  of  promise  case  must  be  corroborated  .  208 

EXECUTED  CONSIDERATION, 

when  it  will  support  a  promise 4,  et  seq. 

EXTRAS, 

in  building  contracts 224 

FACTORS'    ACTS   (6  &  7  Geo.   IV.   c.  94,  5  &  6  Vict.  c.  39  and  40 

&  41  Vict,  c.  39)      87,  89 

FALSE  IMPRISONMENT, 

action  for 352 

FALSE  REPRESENTATION.     See  Fraud. 

FELONY, 

contract  to  compound,  illegal 121,  etseq. 

where  tort  is  also,  civil  remedy  suspended 341,  et  seq. 

i^ENCINC, 

duty  of 267 

FINDER, 

right  against  all  except  true  owner *    .  330 

may  be  guilty  of  larceny 330 

32   COMMON   LAW. 


478  INDEX. 

PAGE 

FIRE, 

negligent  keeping  of 300,  et.  seq. 

FIRE  INSURANCE 184,  et  seq. 

FIXTURES, 

tenant's  right  to  remove '.    .    .    .    97,  et  seq. 

cannot  be  distrained 93 

FORBEARANCE  TO  SUE 

su  ill cient  consideration  to  support  promise 2 

FORCIBLE  ENTRY 325 

FOREIGN  CONTRACT        384  et  seq. 

FOREIGN  LAW, 

how  proved       387 

FORFEITURE,  WAIVER  OF      103,  et  seq. 

FORGERY, 

cannot  be  ratified 71 

FORMATION  OF  CONTRACT      10,  et  seq. 

FRAUD, 

may  be  presumed  from  inadequacy  of  consideration      ...  4 

liability  of  principal  for  fraud  of  agent 77 

fraudulent  profits  by  agents ib. 

gifts  defrauding  creditors      220 

action  for  deceit 312 

responsibility  for  reckless  assertions      314 

in  company's  prospectus        ib. 

may  sometimes  be  committed  with  impunity ib. 

rescinding  contract  on  ground  of ib. 

fraudulent  preference 221 

FRAUDS,  STATUTES  OF,  29  Car.  II.,  c.  3, 

'debt,  default,  or  miscarriage" 12,  ct  seq. 

"  memorandum  or  note  in  writing"      16,  et  seq. 

interests  in  or  concerning  lands 22,  et  seq. 

agreement  not  to  be  performed  within  year 24,  et  seq. 

agreement  upon  consideration  of  marriage      208.  et  seq. 

"  signed  by  the  party  to  be  charged  "       17 

<;  goods,  wares,  and  merchandises "      27 

goods  not  yet  in  existence        30 

several  articles  sold  at  same  time      26 

variation  of  written  contract  by  parol       34,  40 

earnest  and  part  payment 30 

•  licet  of  part  performance        33 

acceptance  and  receipt          27,  et  seq. 

leases  not  in  writing 93,  et  seq. 

representations  as  to  another's  solvency      312,  et  seq. 


INDEX  479 


GAMING  CONTRACTS, 

generally  enforceable  at  common  law        144 

Act  of  1845  (8  and  9  Vict.  c.  109) 145 

recovering  deposit ib. 

null  and  void,  but  not  altogether  illegal ib. 

GIFTS, 

donatio  inter  vivos 373,  el  seq. 

"         mortis  causd        376,  et  seq. 

defrauding  creditors        220 

GOODS,  SALE  OF.     See  Frauds,  Statutk  of. 

GOODWILL,  SALE  OF 132 

GROWING  CROPS, 

sale  of 23 

damage  to,  by  game 257 

GUARANTIES,  ■ 

guaranty  must  be  in  writing 12,  el  seq. 

consideration  need  not  appear  in  document 16 

promise  to  debtor  not  withing  statute 15 

del  credere  agents ib. 

guaranty  must  be  accepted ib. 

alteration  of  terms  between  creditor  and  debtor 19 

misrepresentation  to,  or  concealment  from,  surety     ....  20 

giving  time  to  debtor ib. 

debt  released  or  satisfied      ib. 

society's  interest  prejudiced 21 

continuing  guaranties       ib. 

guaranties  to  or  for  a  firm ib. 

death  of  surety 22 

transfer  of  securities  to  surety ib. 

calling  on  co-sureties  for  contribution        ib. 

HEARSAY, 

not  generally  admissible  in  evidence .*    .    .  364 

exceptions  to  rule 364,  et  seq. 

HEIRS,  BARGAINS  WITH  EXPECTANT 165 

HIGHWAY, 

what  is 379 

dedication  of '    ' 380 

ownership  of ib. 

repair  of 381 

extinguishment  of ib. 

surveyor  of 279 

dangerous  pit  near      275 

HOLDING  OVER, 

remedy  against  tenant  for 103 

HORSE, 

infant  may  be  liable  for  hire  of  . 172 

power  of  servant  to  bind  master  by  warranty  of 70 

what  meant  by  warranty  of  soundness 162 

liability  of  owner  for  trespass  of 243 

sale  of,  in  market  overt 153 


480  INDEX. 

PAGE 

HOUSE, 

implied  warranty  of  fitness  on  letting  furnished 114 

HUNDRED, 

liability  of,  for  riots 281 

HUSBAND  AND  WIFE, 

wife  as  husband's  agent        67,  68 

necessaries  for  wife 68,  69 

Act  of  1882      68,  391 

restraint  of  marriage 127,  ct  seq. 

breach  of  promise  of  marriage 207 

common  law  regards,  as  one  person 391 

separate  property ib. 

criminal  remedies  and  liability  of  married  woman 392 

antenuptial  debts  and  liabilities ib. 

summary  jurisdiction  in  disputes  between ib. 

contracts  relating  to  separation 136 

marriage  brokerage  contracts ib. 

INDENTIFICATION, 

doctrine  of 271 

IGNORANCE, 

money  paid  under  mistake  of  facts  can  be  recovered  \  .    .    .    .  209 

but  not  money  paid  under  mistake  of  law 211 

ILLEGALITY, 

contracts  against  public  policy 120 

statutory  and  common  law 123 

ultra  vires 125 

immoral  contracts 126,  127 

contracts  impeding  administration  of  justice     ....  128,  ct  seq. 

restraint  of  trade 131,  et  seq. 

"    •     "     marriage 133,  et  seq. 

IMMORALITY 126 

IMPLIED  CONTRACTS 11 

IMPLIED  WARRANTIES, 

on  sale  of  goods 166,  et  seq. 

on  letting  furnished  house 114 

in  marine  insurance 178 

IMPOSSIBLE  CONTRACTS 147,  ct  seq. 

INDEMNITY 5,  6 

INFANTS, 

parents'  liability  to  support 8 

contracts  of 171,  ctscq. 

bargains  with  expectant  heirs 174 

INJURIA  SIXE  DA3INO      247,  ct  seq. 


INDEX.  481 

PAOE 

INNS  AND  INNKEEPERS 47,  et  seq. 

INSANE  PERSONS, 

contracts  of      174 

INSURANCE, 

life 180,  et  seq. 

fire 184,  et  seq. 

marine 187,  et  seq. 

INTOXICATION       174 

INVITATION  TO  ALIGHT 260 

JEWS, 

factious  difficulties  placed  in  the  way  of,  becoming  Members 

of  Parliament 139 

JOINT  CONTRACTORS, 

acknowledgments  by      226 

JOINT-TENANCY, 

rights  of  survivorship ■ 116 

leases  by  joint-tenants  . 117 

how  dissolved  ...                118 

JOINT  TORTFEASORS 358 

JUDGE, 

province  of,  in  ''necessaries"  case 172 

"         "    "      negligence       "         271 

is  to  construe  documents 237 

what  he  ought  to  do  when  tort  is  also  a  felony 342 

JUDGMENT, 

effect  of  former  as  estopped * 400 

JURISDICTION, 

agreement  to  oust,  of  courts  void 128 

of  magistrates  ousted  by  claim  of  right 350 

JUSTERTII 330 

JUSTICES  OF  THE  PEACE, 

actions  against,  conditions  of  bringing 348 

entitled  to  notice  of  action U>. 

claim  of  right  ousts  jurisdiction  of U>. 

KEY      93 

LADING,  BILLS  OF 205 

LAND, 

interest  in,  contract  for ' 23 

negligent  uses  of 256 

support  of,  action  for  disturbance  of      304 

no  private  ownership  of,  by  English  law 121 

covenant  running  with 1 10,  et  seq. 


482  INDEX. 

PAGH 

LAND  CARRIERS  ACT  (11  Geo.  IV.  &  1  Will.  IV.  c.  6ft)     ...      54,  et  seq. 

LANDLORD  AND  TENANT. 

tenant  estopped  from  disputing  landlord's  title 402 

who  liable  for  nuisance  on  demised  premises       298 

waiver  of  forfeiture 96,  et  seq. 

implied  warranty  of  fitness  on  letting  furnished  house     .    .  114 

tenancy  at  will  converted  into  yearly  tenancy 94 

notice  to  quit       95 

things  privileged  from  distress 86,  et  seq. 

removable  fixtures 90,  et  seq. 

covenants  running  with  land      110,  et  seq. 

licences ,  .    .  119,  et  seq. 

LATENESS  OF  TRAINS 63,  et  seq. 

LAW, 

foreign,  how  proved       352 

LARCENY, 

finder  may  be  guilty  of 330 

tort  amounting  to  felony      341 

recovering  stolen  goods 45,  160 

LEASE. 

for  more  than  three  years  not  in  writing       .    : 93,  et  seq. 

LENDER 43 

LETTER, 

contract  by       9 

publication  of  libel  in        336 

LEX  LOCI  CONTRACTUS  AND  LEX  LOCI  FORI      384 

LIBEL.     See  Defamation. 

LICENCE 

revocability  of IIS 

licencee  suing  third  party ib. 

licencee  suing  for  personal  injuries 27? 

LIEN, 

commodatory  has  no,  for  antecedent  debt 44 

innkeepers'       49 

general  and  particular 143 

solicitor's      ib. 

LIFE  INSURANCE 180 

LIGHTS,  ANCIENT 251,  et  seq. 

LIMITATIONS,  STATUTES  OF 228,  et  seq. 

LIQUIDATED  DAMAGES 241,  et  seq. 


INDEX.  483 

•   PAGE 

LIS  MOT  A, 

doctrine  of :;.">:; 

LLOYDS 39 

LOAN 43 

LODGER, 

contract  to  let  furnished  lodgings   within  the   Statute   of 

Frauds 24 

but  not  contract  for  board  and  lodging  merely       ■.    .    .    .    .  ib. 

Lodgers  Goods  Protection  Act  (34  &  35  Vict.  c.  79)       ...  88 

LORD  CAMPBELL'S  ACT 361 

LORD'S  DAY, 

Act  of  Charles  II,  (29  Car.  II.  c.  7) 141 

persons  to  whom  Act  applies ib. 

ordinary  calling ib. 

contract  must  be  complete  on  Sunday 142 

exception  in  favour  of  provisions ib. 

Sunday  amusement  and, recreation ib. 

LOTTERIES, 

declared  public  nuisances  by  10  &  11  Will.  III.,  c.  17      .    .  147 

Art  Union  Lotteries  allowed ib. 

LUGGAGE, 

personal,  what  is 58 

under  passenger's  own  control ib. 

porter  taking  charge  of 59 

cloak  rooms       ib. 

loss  off  line 60 

LUNATICS, 

contracts  of       173 

MAGISTRATES.     See  Justices  of  the  Peace. 

MAINTENANCE       121 

MALICE.    See   Privileged    Communication    and   Malicious 
Prosecution. 

MALICIOUS  PROSECUTION 352,  el  seq. 

MANDATUM 42 

MAN-TRAPS, 

responsibility  of  persons  setting 275 

MARINE  INSURANCE, 

when  concealment  or  misrepresentation  vitiates  policy  of  .    .  187 

MARKET  OVERT, 

sale  in 152 

effect  of  prosecuting  thief  to  conviction      ib. 

horses 153 


484  INDEX. 

PAGE 

MARRIAGE, 

contract  in  restraint  of 133,  etseq. 

"        to  bring  about 136 

breach  of  promise  of     .    .    .* 207,  208 

contract  relating  to  separation 136 

MARRIED  WOMEN.     See  Husband  and  Wife. 

MASTER  AND  SERVANT, 

when  writing  necessary  to  contract 25 

when  servant  binds  master  by  giving  warranty 70 

what  justifies  summary  discharge  of  servant 214,e<  seq. 

respondeat  superior 293 

doctrine  of  common  employment 282 

Employers  Liability  Act,  1880 283 

interference  with  relation  of  master  and  servant 359 

seduction 310 

fires  caused  by  servants 303 

MASTER  OF  SHIP, 

authority  of,  to  bind  owner 71 

MAXIMS  OF  THE  LAW.     See  Appendix  C, 

MEMORANDUM  IN  WRITING, 

what  sufficient,  to  satisfy  Statute  of  Frauds 17 

MERCANTILE  CUSTOM, 

oral  evidence  of,  to  explain  document 37,et  seq. 

MINES 305 

MISDEMEANOUR,  COMPOUNDING 121,  etseq. 

MISREPRESENTATION.     See  Fkaud. 

MISTAKE, 

money  paid  under  mistake  of  fact  may  be  recovered,  but  not 

money  paid  under  mistake  of  law 209,  et  seq. 

MORAL  OBLIGATION, 

will  not  support  promise 7 

MORTGAGES, 

mortgagor's  tenants 106.  et  seq. 

Act  of  1881 109 

provisions  of  Judicature  Act  as  to ib. 

MUTUALITY 9,et  seq. 

NECESSARIES, 

for  wife 68,  69 

"  infant 171,  etseq. 

'  ship 71 

NEGLIGENCE, 

of  railway  companies 265 

duties  of  judge  and  jury  in  action  for •  266 

contributory 271,  et  seq. 

in  carrying  out  building  operations 305 


INDEX.  485 

PAGE 

NEGOTIABLE  INSTUMENTS, 

nemo  rf«t  quod  rum  habei 151 

various  kinds  of ib. 

restricting  negotiability 152 

NEWSPAPER, 

libel  in 337 

NOTICE, 

to  quit 101 

of  dishonour 154, etseq. 

of    action 350 

NOVATION     . 228 

NUISANCE, 

action  for  public ■ 306 

obstructing  ancient  lights 251 

removing  support 304 

ruinous  premises 298 

sparks  from  engines 300 

OATHS      139 

OFFER.     See  Proposal. 

ORAL  EVIDENCE, 

effect  of,  on  written  contract 34,  et  scq. 

PAROL  EVIDENCE.     See  Oral  Evidence. 

PARENT, 

not  liable  for  necessaries  supplied  to  infant  child 8 

may  bring  action  under  Lord  Campbell's  Act 362 

PARSON.     See  Simony. 

PART-PERFORMANCE 33 

PARTNERSHIP, 

sharing  in  profits  not  conclusive  evidence  of 198 

Bovill's  Act  (28  &  29  Vict.  c.  86) 199 

duties  of  retiring  partners 200 

PASSENGERS,  CARRIERS  OF 269 

PASSENGERS'  LUGGAGE.     See  Luggage. 

PAST  CONSIDERATION, 

when,  will  support  promise 5,  et  seq. 

PAWNBROKERS, 

pawning  at  common  law 44 

Pawnbrokers  Act,  1*72  (35&36  Vict.  c.  93)       ib. 

owner  may  recover  thing  stolen  and  pawned       45 

implied  warranty  on  sale 165 


48G  INDEX. 

PAGE 

PAYMENT, 

writing  unnecessary  when  part-payment 30 

revival  of  old  debt  by  part-payment       237 

PEDIGREE, 

hearsay,  when  evidence  to  prove 366 

PENALTIES  AND  LIQUIDATED  DAMAGES 244,  et  seq. 

PERFORMANCE, 

within  Statute  of  Frauds   32 

suing  before  day  of 213,  214 

PILOT, 

not  generally  entitled  to  salvage 12 

ship  compulsorily  under  management  of      271 

PLEDGE.     See  Pawnbrokers. 

POLICY,  PUBLIC 121,  etseq.,  341 

POSSESSION, 

advantage  of,  against  wrongdoer 330 

POST, 

contract  made  through      9 

PREMIUM,  RETURN  OF      190 

PRESCRIPTION  ACT 251,  etseq. 

PRESUMPTION, 

that  wife  is  husband's  agent 67,  68 

of  death 397,  et  seq. 

PRINCIPAL  AND  AGENT, 

wife  as  husband's  agent 69,  etseq. 

general  and  special  agents      75 

who  may  be  agent  to  sign  contract  within  Statute  of  Frauds  17 

suing  undisclosed  principals 74,  et  seq. 

fraud  of  agent  is  fraud  of  principal 78 

surreptitious  profit  by  agent il>. 

set-off  against  factor's  principal 79,  et  seq. 

partnership  a  branch  of  law  of  agency      '200 

Factors  Acts 82 

agent  exceeding  authority  liable  in  contract 83,  et  seq. 

extent  of  agent's  authority 69,  etseq. 

PRINCIPAL  AND  SURETY.     See  Guaranties. 

PRIVILEDGED  COMMUNICATION. 

what  is      338 

presumption  of,  rebutted  by  proof  of  express  malice      .    .    .  339 

must  not  be  made  unnecessarily  by  telegram  or  postcard    .  340 

PRIVITY 345,  et  seq. 


INDEX.  487 

PAGE 

PROBABLE  CAUSE, 

want  of,  iu  action  for  malicious  prosecution,       354 

PRODUCTION, 

necessary  to  valid  tender      236 

PROPER  VICE 51 

PROPERTY, 

when,  passes  on  sale  of  goods 210 

PROPOSAL, 

may  be  retracted  before  acceptance 8,  9 

PROSPECTUS, 

directors  of  company  liable  for  misrepresentations  in    .    .    .  315 

PUBLIC  DOCUMENTS 365 

PUBLIC  HEALTH  ACT,  1875, 

when  contracts  within  must  be  under  seal 177 

highways  under 380 

PUBLIC  POLICY, 

contract  void  for  being    against 121 

PUBLICATION  OF  LIBEL.     See  Defamation. 

QUALITY, 

where  implied  warranty  of,  on  sale  of   goods 166 

QUANTUM  MERUIT, 

when  plaintiff  can  sue    on .  223 

RAILWAY  COMPANY, 

lateness  of  trains 63,  ct  scq. 

proper  vice,  bad  packing,  and  dangerous  goods 50,  51 

special   contracts    with  carriers 51,  etseq. 

Land  Cairiers  Act 54,  et  aeq. 

passengers'  luggage 57,  et  seq. 

cloak  rooms 59 

loss  of   luggage  off  company's  line 60 

RATIFICATION, 

accepting  unauthorized  contract  of  agent 71 

Infants  Relief   Act,  1874 173 

ratification  of  tort 359 

RECEIPT, 

difficulty  of  unstamped,  how  surmounted 31 

demand  of,  may  vitiate  tender 2?>G 

of  goods  within  Statute  of  Frauds 27,  el  acq. 


488  INDEX. 

PAGE 

RECOVERY  OF  MONEY, 

on  ground  of    failure  of  consideration 4 

"  mistake 209,  etseq. 

"  illegality 125 

RELIGION.     See  Christianity,  Simony,  and  Sunday. 

REPAIR  OF  HIGHWAY 381 

RES  GESTsE, 

declaration  admissible  as  part  of 367 

RESIGNATION  BONDS 140 

RESPONDEAT   SUPERIOR 293,  331 

RESTRAINT  OF  MARRIAGE 133,  et  seq. 

RESTRAINT  OF  TRADE 131,  et  seq. 

RETURN  O  F  PREMIUM 190,  et  seq. 

REVERSION, 

covenants  running  with 110 

REVOCATION  OF  OFFER 9 

RIOTERS 281 

RIPARIAN  OWNERSHIP, 

rights  of 235,  etseq. 

RUINOUS  PREMISES 298 

SABBATH.     See  Lord's  Day. 

SALE, 

of  goods.    See  Warranty  and  Statute  of  Frauds. 

of  officers , 121 

ofgoodwill .  132 

SALVAGE, 

jurisdiction   in    matters II 

salvors  only  entitled  to  moiety ib. 

pilots   and  passengers ib. 

misconduct  of   salvors ib. 

SAMPLE, 

implied  warranty  on  sale  by 167 

SATISFACTION, 

lesser  sum  cannot  be  pleaded  in .  of  greater 23$ 

SCIENTER.     See  Dogs. 


INDEX.  489 

PAGE 

SEAWORTHINESS 193 

SECURITIES, 

surety  paying  debt  entitled  to  creditor's 22 

SEDUCTION, 

absurd  fiction  on  which   action  for,  is  based 310 

proof  of  service ib. 

damages  in  action  for 311 

SERVANT.     See  Master  and  Servant. 

SET-OFF  AGAINST  FACTOR'S  PRINCIPAL 84,  el  seq. 

SHERIFF , 

every  Englishman's  house  is  his  castle 326,  et  seq. 

SIC   UTEBE    TUO 256 

SIGNATURE, 

what  sufficient,  within  Statute  of  Frauds 17 

SIMONY, 

so  called  from  Simon  the  Sorcerer      140 

31  Eliz.  c.  6 ib. 

resignation  bonds ib. 

SLANDER.     See  Defamation. 

SLAVERY        137 

SOLICITOR, 

lien  of 144 

notice  of  action  by,  in  action  on  bill 351 

SPARKS 300,  et  seq. 

SPECIAL  TRAIN, 

when  passenger  may  take,  at  company's  expense 63,  et  seq 

SPRING  GUNS      276 

STAKEHOLDER, 

when  money  paid  to,  can  be  recovered 145,  et  seq. 

See  Interpleader. 

STAMPS, 

exemptions  from  stamp-duty       31 

several  documents  but  only  one  contract ib. 

only  one  document  but  several  contracts ib. 

lost  instrument it- 
unstamped  receipt ib. 

use  of  unstamped  agreement ib. 

STATUTES      See  Appendix  A. 


490  INDEX. 

PAGE 

STOLEN  GOODS, 

when  true  owner  can  recover 45,  152 

effect  of  sale  of,  in  market  overt       152 

suspension  of  action  for  tort  when  evidence  of  felony    .    .    .  341 

STOPPAGE  IN  TRANSITU 204,  et  seq. 

STRANDING, 

what  amounts  to  a 200 

SUICIDE, 

effect  of,  on  policy  of  life  insurance       182 

SUNDAY, 

contracts  made  on,  when  illegal 141,  et  seq. 

Sunday  amusements 142 

Sunday  shaving St. 

SUPPORT  OF  LAND, 

action  for  disturbance  of t  304 

adjoining  houses 305 

laud  supported  by  water 306 

SURETY.     See  Guaranties. 

SURVEYORS  OF  HIGHWAYS, 

actions  against 279,  et  seq. 

SURVIVORSHIP, 

presumptions  as  to 397 

right  of,  in  joint  tenancy      116 

TENANT.     See  Landlord  and  Tenant. 

TENDER, 

essentials  of  valid       235 

effect  of 236 

TENDERDEN'S,  LORD,  ACT  (9  Geo.  IV.  c.  14) 313 

TITLE, 

implied  warranty  of,  on  sale  of  chattel lf>4 

tenant  estopped  from  disputing  landlord's 402 

possession  as  against  wrongdoer 330 

negotiable  instruments 153,  et  scq. 

market  overt  and  stolen  goods 152 

slander  of 336 

TORT, 

damages  in  action  for 359 

novelty  of,  no  answer  to  action       248 

founded  on  contract 346 

committed  abroad       385 

no  contribution  between  defendants  in      358 

amounting  to  felonies 341 


INDEX.  491 

PAGE 

TRACTION  ENGINES 283,  et  seq. 

TRADE,  RESTRAINT  OF 131,  et  seq. 

TRADE  MARKS, 

warranty  implied  from      168 

TRADE  UNION 132 

TRESPASS, 

escape  of  dangerous  substances  brought  on  land 256 

ah  initio 322 

conversion 333 

TRESPASSER, 

persons  setting  man-trap  responsible  to 275 

in  regard  to  defendant's  negligence 275,  et  seq. 

TROVER.     See  Conversion 

ULTRA  VIRES, 

meaning  and  illustrations  of 125 

UNDUE  INFLUENCE, 

gift  obtained  by 373 

UNSOUNDNESS, 

what  is,  in  horse 164 

USAGE, 

evidence  of,  to  explain  written  contract 37,  et  seq. 

VADIUM 44 

VARIATION  OF  WRITTEN  CONTRACT      34,  et  seq. 

VIBRATION  FROM  TRAINS 301 

VIS  MAJOR 50,  257 

WAGERING  CONTRACTS 144,  et  seq. 

WAIVER 

of  forfeiture 103,  et  seq. 

WARRANTY, 

oral  evidence  cannot  be  given  to  contradict  plain  meaning 

of 164 

must  be  part  of  contract  of  sale 163 

implied,  of  title \    .    .  164 

Implied,  of  quality 166 

implied,  of  fitness  on  letting  furnished  house 

general,  does  not  extend  to  obvious  defects      161 

remedies  for  breach  of .  162 


492  INDEX. 

PAGE 

WATERCOURSES, 

rights  of  riparian  ownership 248,  et  seq. 

support  of  land  by  water      ...  249 

underground ib. 

artificial ib. 

percolating       ib. 

WAYS.    See  Highways. 

WIFE.     See  Husband  and  Wife. 

WITNESSES, 

atheists  may  be 138 

WORDS, 

how  to  be  taken  on  construing  written  contract 237 

oral  evidence  to  explain,  when  admissible 38 

WRITING, 

note  or  memorandum  within  Statute  of  Frauds 16,  ct  seq. 

WRONGFUL  DISMISSAL.     See  Master  and  Servant. 

YEAR, 

contract  not  to  be  performed  within 24,  el  seq. 

YEARLY  TENANCY, 

tenancy-at-will  may  become 101 

notice  to  quit  under       102 


THE  END. 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •  Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


15 


UCLA  COL  LIB 
RECEIVED 


MAU  9  2007 


mi 


%n-iiw 


OOL  OF  LAW  LIBRARY 
UNIVERSITY  OP  CALIFORNIA 
LOS  ANGELES 


z)l  I 

IJJ 

« 

CO 

s 

JX>    \ 

,Vrn 

CO 

>: 

*«« 

vK_ 

A3 

I  IktV 

\T          k 

3^ 

^3 

1  i  f' 

-< 

uL 

1  1 L* 

i  <xr 

p^r 

^=Ti 

N 

/A 

! — i 

3 

v  i/y  \> 

/ 

^& 

T77^    1 

O 

C£ 

L^Ss 

Yl^v/ 

3Jp 

s 

,,^™^rfv 

C^l 

pa 

n  v 

II 

r-rt 

!Zj 

<-— *  v 

.— '  1    I 

AUlBRAim 

Or^ 

r— • 

w 

^ 

CO 

[■pf#Ai 

■>^l 

ahain  itf 

HGELfj 

4 

Or-* 

n* 

A    U 

CO 

/ 

3~==r 

5- 

XllQ 

^ 

UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  858  156    3 


